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PETITIONER: EMPLOYERS OF THUNGABHADRA INDUSTRIES LTD.

       Vs.

RESPONDENT: THE WORKMEN AND ANOTHER

DATE OF JUDGMENT04/05/1973

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1973 AIR 2272            1974 SCR  (1) 172  1974 SCC  (3) 167

ACT: Industrial   Disputes  Act  1947,s.  9(6)--Terminiation   of award--Requirements  of s. 19(6)-Termination must  be  fixed with reference to a particular date.

HEADNOTE: By an award dated, September 26, 1958 in I.D. No. 20 of 1957 the respondent workmen received certain benefits apart  from the  fixing  of basic wages for  different  categories.   On March  8,  1968 the workmen submitted a charter  of  demands relating  to categorization and scales of pay  and  dearness allowance respectively.  Later the Union passed a resolution and  intimated  the management that the workmen will  be  on strike  from April 15, 1968.  They actually were  on  strike from  April 15 to 20. 1968.  Conciliation  proceedings  were attempted but failed.  The State Government passed an  order on  July  25, 1968 referring the dispute  for  adjudication. The dispute was dealt with by the Tribunal in I.D. No. 43 of 1968., The appellant company raised a preliminary  objection before the Tribunal that as the previous award in I.D.  ’No. 20 of 1968 had not beer. terminated the present reference by the State Government on July 25. 1968, was incompetent.  The Tribunal  upheld the objection.  A Single Judge of the  High Court dismissed a writ petition filed by the workmen against the order of the Tribunal.  The Division Bench however  held that  the earlier award had been terminated and  the  second reference  was competent. in coming to this  conclusion  the Division Bench took into account the following circumstances namely,  (a) that the workmen had raised demands which  were inconsistent  with the earlier award. (b) that  the  workmen had  gone  on  strike  and  (c)  that  the  management   had participated in the conciliation proceedings. Allowing the appeal by the company, HELD  :  Though  there is no particular form  in  which  the notice  of  termination  has  to  be  given,  still  it   is absolutely  essential  that the intention to  terminate  the award,  with  reference to a particular date, must  be  made clear by the parties, who set up a case of termination. In the instant case the charter of demands did not give  any indication  that  the previous award  had  been  terminated. Even  assuming  that by the charter of demands on  March  8, 1968,  the  award  was  terminated,  nevertheless,  it   *HI

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continue  to be in force for a further period of two  months from  the  dale  under section 19(6).   The  fact  that  the workmen went on strike from April 15, 1968, even before  the expiry  of  this two months period. was an  indication  that they were dissatisfied with the refusal by the management to accede to their demands.  If really they had terminated  the award on March 6, 1968, it was unreasonable to hold that the workmen  would  have gone on an illegal  strike  before  the expiry of two months from the said date. [251E] The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer. which was also on  a  subsequent date, was also of so importance.   When  a strike  is  on  it,  is  obligatory  on  the  part  of   the Conciliation  Officer to initiate  conciliation  proceedings and  the management had acted property in  participating  in the conciliation proceedings. [250H] Management of Bangalore Woollen Cotton & Silk Mills Co. Ltd. v.The Workmen & Anr., [1968] 1 S.C.R. 551, applied. The  Workmen of Western India Match Co. Ltd. v. The  Western India Match Co.  Ltd.. [1963] 2 S.C.R. 27, explained. 4-L373Sup CI/74 248

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2271  of 1970. Appeal  by  certificate from the judgment  and  order  dated September  23,  1970  of the Andhra Pradesh  High  Court  at Hyderabad in Writ Appeal No. 31 of 1970. V.   S.  Desai,  Naunit  Lal  and  M.  N.  Shroff,  for  the appellant. M.   K.  Ramamurthi and J. Ramamurthi, for respondent No.  1 (for one section of workmen). B.  P. Singh, for respondent No. 1 (for another  section  of workman). The Judgment of the Court was delivered by VAIDIALINGAM,  J.-This appeal on certificate is against  the judgment and order dated September 23, 1970, of the Division Bench  of the High Court of Andhra Pradesh, in  Writ  Appeal No. 31 of 1970. By order dated July 25, 1968. the State, Government referred to  the Industrial Tribunal Andhra Pradesh,  Hyderabad,  for adjudication  certain  disputes.   The  appellant  raised  a preliminary  objection that in respect of the items  covered by the present reference, there was a previous award in I.D. No. 20 of 1957 passed by the Tribunal on September 26, 1958. As  the  said  award had not been  terminated,  the  present reference  by  the State Government on July  25,  1968,  was incompetent.   The  workmen, on the other  hand,,  contended before  the  Tribunal  that  the  previous  award  had  been terminated according to law and, therefore, there was no bar to  the State Government making the present reference.   The Industrial  Tribunal  by its award dated  October  31,  1969 upheld the objection of the company and hold that the  award in  I.D.  No.  20  of 1957  bad  not  been  terminated.   In consequence,  the  Tribunal  held  that  the  reference  was incompetent. The  workmen challenged the award in Writ Petition No.  4186 of  1969 before the Andhra Pradesh High Court.  The  learned single Judge, who dealt with the said Writ Petition, by  his judgment  and  order dated December 8, 1969,  dismissed  the Writ Petition and agreed with the view of the Tribunal  that the award in I.D. No. 20 of 1957 had not been terminated and

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hence  the  present reference by the  State  Government  was incompetent.   On appeal by the workmen, the Division  Bench in Writ Appeal No. 31 of 1970, however, took a contrary view and  held that the, previous award had been terminated.   In this  view,  the  learned  Judges  held  that  the   present reference was competent and directed the Industrial Tribunal to dispose of the reference on merits. It  is this view of the Division Bench that is  attacked  on behalf  of the appellant by its learned counsel, Mr.  V.  S. Desai.   There is no controversy that there was  a  previous award in I.D. No. 20 of 1967 dated September 26, 1958.  This award  was  published in the State Gazette  on  October  30, 1958.  Under the said award, various benefits were given  to the  staff,  apart  from fixing basic  wages  for  different categories.  On March 8, 1968, the Thursday hydra Industries Staff Union submitted a charter of demands to the management to be im- 249 mediately  complied with.  The first and the second  demands related  to  categorization and scales of pay  and  dearness allowance respectively.  The union desired the management to consider  the demands and intimate the union  regarding  the action  taken  on or before March 30, 1968.  On  6th  April, 1968,  the  union  sent  to the  appellant  a  copy  of  the resolution  passed  by its general body on April  5,_  1968. The  resolution regretted the inaction of the management  in respect  of  the  demands made on March  8,  1968  and  also intimated  that the workmen will go on an indefinite  strike front  April  15,  1968.  Accordingly the  workmen  were  on strike from April 15, 1968 to April 30, 1968.  The Assistant Labour Commissioner, Kurnool, held conciliation  proceedings on  April 30, 1968 and an agreement was arrived at.  One  of the terms of the, agreement was that the general demands  of the  staff  union  will be taken up  in  conciliation.   The Conciliation Officer made a report on June 24, 1968, to  the Government  that conciliation was not possible.   The  State Government, after receipt of this report, passed an order on July 25, 1968, referring the dispute for adjudication.  This reference  was dealt with by the Tribunal in I.D. No. 43  of 1968. Under section 19, sub-section (3) of the Industrial Disputes Act,  1947, (hereinafter to be referred to as the  Act),  an award  is operative, subject to the provisions of  the  said section, for a period of one year from the date on which the award  becomes enforceable under section  17A.   Sub-section (6) of section 19 provides that, notwithstanding the  expiry of  the period of operation under subsection (3), the  award shall  continue to be binding on the parties until a  period of  two months has elapsed from the date on which notice  is given by any party bound by the award to the other party  or parties intimating its intention to. terminate the award. The  previous award in I. D. No. 20 of 1957 member 26,  1958 and was published in the State 30, 1958.  Under section 17A, the  said  award on the expiry of 30 days from  October  30, 1958,  location under section 17.  Under section  19(3)  No. 20,  of  1957 will remain in operation for a from  the  date when it became enforceable under section 17A.  But by virtue of  sub section (6) of section 19, though the said one  year period  may have expired, the award will continue to  be  in force  and binding on the parties till a notice  terminating the  award  is given by any of the parties.  Even  then  the award  will  continue to be in force. for a  period  of  two months from the date of the notice. In the, case before us, when the charter of demands was pre- sented  to  the management by the union on  March  8,  1968,

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admittedly   the  latter  had  not  given  any  notice,   as contemplated under section 19(6) of the Act.  It is also not in dispute that the said charter of demands referred to  all the matters covered by the previous award in 1. D, No. 20 of 1957. Under  these circumstances, the question arises whether  the present reference dated July 25, 1968, is competent.  Mr. V. S. Desai, 25 0 learned  counsel  for  the  appellant  referred  us  to  the decision  of this Court in Management of Bangalore  Woollen, Cotton  & Silk Mills CO. Ltd. v. The Workmen & Anr. (1)  and urged that the view of the Division Bench of the High  Court upholding  the  competency of the present reference  is  not correct. The  above  contention  of Mr. V. S. Desai was  met  by  Mr. Ramamurthi,  learned  counsel for some of  the  workmen,  by placing  reliance on the circumstances noted by the  learned Judges of the Division Bench as pointing to the  termination of the previous award. The  Division  Bench  has proceeded on the  basis  that  the subject  matter of the dispute in the present  reference  is almost identical with the matters covered by the award  made in  I.D). No. 20 of 1957.  The Division Bench has also  held that no notice. terminating the previous award, as  required by  section 19(6) of the Act, was given when the charter  of demands  was submitted to the management on March  8,  1968. But  the  learned Judges of the Division Bench  have  relied upon  three circumstances as indicating that the  union  had terminated the previous award.  Those circumstances are               (1)   The  making of a charter of  demands  on               March   8,   1968,   inconsistent   with   the               directions contained in I.D. No. 20 of 1957.               (2)   the  workmen going on strike from  April               15, 1968 to April 30, 1968 when the management               did not accede to the demands; and               (3)   when the management participated in  the               conciliation  proceedings  initiated  by   the               concerned officer on April 30. 1968. These  circumstances,  according  to  the  learned   Judges, clearly  lead  to  the  conclusion  that  the  workmen   had indicated their intention not to abide by the previous award in I.D. No. 20 of 1957. The  approach  made by the learned Judges  of  the  Division Bench   is  erroneous.   The  judgment  of  this  Court   in Management  of  Bangalore Woollen, Cotton & Silk  Mills  Co. Ltd.(1)  case,  though referred to, has  not  been  properly appreciated.   The  Division  Bench  missed  the   important circumstance that the union must establish the point of time when the previous award has been terminated.  Therefore, the question that should have been tackled was whether on  March 8,  1968, when the charter of demands was  submitted,  there has  be-en  a proper termination of the previous  award,  as required  under  section 19(6).  The fact that  the  workmen went  on  a strike subsequently may indicate that  they  are dissatisfied with the refusal of the management to accede to their  demands.  But that will not satisfy  the  requirement under  section 19(6).  The fact that the appellant  partici- pated   in   the  conciliation  proceedings  held   by   the Conciliation  Officer, which is also on subsequent date,  is also  of  no  importance.   When a  strike  ’is  on,  it  is obligatory  on  the  part of  the  Conciliation  Officer  to initiate  conciliation  proceedings and the  management  had acted pro- (1)  [1968] 1 S. C.R. 581.

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251 perly in participating in the conciliation proceedings.  But it  is to be noted that in the report dated June  24.  1968, the Conciliation Officer had clearly stated that with regard to  the  demand for categorisation and scales  of  pay,  the management  were not inclined to consider the same, as  they had been fixed by the award in I.D. No. 20 of 1957 and  that the  said award had not been terminated so far.   Therefore, the  stand of the appellant as on April 20, 1968, the  date. when  the conciliation proceedings were held, was  that  the previous award had riot been terminated by the union. Mr.  Ramamurthi,  learned counsel for some of  the  workmen, pointed  out  that  the  serving of  a  charter  of  demands clearly  shows that the union had terminated the award.   In our opinion, this contention cannot be accepted, because  it does  not  satisfy the requirement of section  19(6).   This Court has held in Management of Bangalore Woollen, Cotton  & Silk Mills Co. Ltd. (1) case that regarding the  termination of an award, it must be fixed with reference to a particular date so as to enable a court to come to the conclusion  that the party giving that intimation has expressed its intention to  terminate the award.  Such certainty regarding the  date is quite essential because the period of two )months,  after the  expiry of which the award ceases to be binding  on  the parties,  will  have to be reckoned from the  date  of  such clear intimation regarding the termination of the award. Though  there is no particular form in which the  notice  of termination  has  to  be  given,  still  it  is   absolutely essential  that the intention to terminate the  award,  with reference  to a particular date, must he made clear  by  the parties, who set up a case, on termination.  In the  instant case,  after  going through the charter of demands,  we  are satisfied  that  it does not give any  indication  that  the previous  award has been terminated.  Even assuming that  by the  charter  of  demands on March 8, 1968,  the  award  was terminated,  nevertheless, it will continue to be in  force, for  a  further period of two months from  that  date  under section  19(6).   The fact that the workmen went  on  strike from  April  15, 1968, even before the expiry  of  this  two months period, is an indication that they were  dissatisfied with  the  refusal  by the management  to  accede  to  their demands.   If really they had terminated the award on  March 8,  1968, it is unreasonable to hold that the workmen  would have  gone  on an illegal strike before the  expiry  of  two months from the said date. The decision in The Workmen of Western India Match Co.  Ltd. v.  The  Western India Match Co. Ltd., (2)  which  has  been relied  on by the Division Bench and also by Mr.  Ramamurthi before us, has been explained by this Court in Management of Bangalore Woollen, Cotton & Silk Mills Co. Ltd.() case.  The distinctive features and the particular circumstances  under which  the said decision was given, have not  been  properly appreciated  by  the Division Bench.  Mr.  Ramamurthi  urged that in the Workmen of Western India Match Co. Ltd.(2) case, this Court has accepted the position that the charter (1) [1968] 1 S.C. R. 581. (2)  [1968] 2 S. C. R. 27. 252 of demands and various representations made by the  workmen, which were inconsistent with an award already in force, will lead  to  the inference of an intention by  the  workmen  to terminate the previous award.  We are not inclined to accept this  contention of the learned counsel.  The said  decision of  this  Court did not accept the position  that  the  mere making of demands, without any thing more, will amount to  a

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termination  of  a  previous  award.   On  the  other  hand, ignoring  the  charter  of demands as well  as  the  various representations  mad-, by the union, this Court in the  said decision  held that the letter dated April 8, 1957,  written by  the  union,  had  the effect of  giving  notice  to  the management  about  termination of the  settlement.   It  was after  fixing  this date as the date of termination  of  the settlement, this Court further held that the reference  made by the State Government long after the expiry of two  months from  the  said  date,  was competent.   In  fact  the  said decision is against the view taken by the Division Bench  of the  High Court in the case before us an the view which  was sought to be supported by Mr. Ramamurthi. We  are not inclined to agree with the view of the  Division Bench that there has been a termination of the award in I.D. No.  20 of 1957.  If so, the Industrial Tribunal as well  as the  learned  single ’Judge were right in holding  that  the present reference dated July 25,,1968, is incompetent. In  the result, the judgment and order of the High Court  in Writ Appeal No. 31 of 1970 are set aside and. the appeal. is allowed.  There will be no order as to costs. G.C. Appeal allowed. 2 5 3