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PETITIONER: FEROZ DIN AND OTHERS

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 25/11/1959

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAS, S.K. HIDAYATULLAH, M.

CITATION:  1960 AIR  363            1960 SCR  (2) 319  CITATOR INFO :  E          1968 SC 247  (9,11)

ACT: Industrial   Dispute-Strike-Notice   of    discharge-Whether amounts to lock-out-Sanction to prosecute-Facts constituting the  offence  not  shown  on  the  face-Conviction  on  such sanction if bad-Industrial Disputes Act, 1947 (14 of  1947), ss. 27, 24, 2(1).

HEADNOTE: A company dismissed from its service four of the appellants, for  taking  part  and instigating others  to  join,  in  an illegal  slowdown  strike  in the Hot Mill  Section  of  its works,  which  were  a  public  utility  service.   On  such dismissal the slow-down strike however gained strength.  The company  thereupon issued a notice dated April 8,  1953,  to the  workers  of the Hot Mill that unless  they  voluntarily recorded  their  willingness  to operate the  plant  to  its normal  capacity, before 2 p.m. of April 10, they  would  be considered  to be no longer employed by the company.   As  a result  forty  workers recorded their willingness,  but  the rest  did  not make any response at all.  The  company  then issued a second notice dated April 25, stating, inter  alia, that  the  Workers who did not record their  willingness  to work  the  plant  to its normal capacity  in  terms  of  the previous notice dated April 8, had been considered to be  no longer in service and their formal discharge 320 from the company’s service had been kept pending in order to assure  to  the  fullest  that no one  who  wanted  to  work normally was being discharged on circumstantial  assumptions and calling upon the workers to record their willingness  by April 28, 1953, to operate the plant to its normal capacity, and  further intimating that failing this their names  would be  removed  from the company’s rolls  and  their  discharge would become fully effective with all the implications of  a discharge.  After this notice the    entire body of  workers of the works except those engaged in the essential  services went on strike Thereafter, the company with the sanction  of the  Government  filed  a  complaint  under  S.  27  of  the Industrial  Disputes Act against the appellants  for  having

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instigated  and  incited others to take part in  an  illegal strike. The  appellants were convicted.  The  appellants  challenged the  said conviction under S. 27 of the Act contending  that the  strike  was  not  illegal as the  strike  had  been  in consequence  of an illegal lock-out declared by the  company by  the  said  notices  dated April 8  and  April  25.   The appellants further contended that the notices did not effect a  discharge, but declared a lock-out and that even  if  the notices did effect a discharge, then also there was a  lock- out,  for  a discharge is equally a lock-out.   Finally  the appellants  challenged the propriety of, the sanction  under s.  34(1) of the Act to make the complaint as  the  sanction did  not on the face of it refer to the  facts  constituting the offence. Held,  that  on a construction of the notices they  bad  the effect  of discharging the workmen, and did not amount to  a declaration The  removal  of the name of a worker from the Roll  of  the company was a formality which the notices said had been kept pending and this did not prevent the discharge having  taken effect. The words " refusal by an employer to continue to employ any number  of  persons  employed by him " in  S.  2(1)  do  not include the discharge of an employee. Held,  further that sanction under s 34(1) of the Act  would be  good  if  it was proved by evidence  that  it  had  been granted after all the necessary facts had been placed before the  sanctioning authority though the facts were not  stated on the face of the sanction itself. Presidency Jute Mills Co. Ltd. v. Presidency Jute Mills Co. Employees, Union, [1952] I.A.C. 62, approved Gokalchand  Dwarkadas  Morarka v. The King, (1948)  L.R.  75 I.A. 30, discussed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.. 48  of 1958. Appeal  by special leave from the judgment and  order  dated July 4, 1956, of the Calcutta High Court, 321 in  Criminal  Revision No. 1005 of 1955 arising out  of  the judgment  and order dated July 21, 1955, of  the  Additional Sessions Judge, Asansol, in Criminal Appeal No. 125 of 1955. H.   J. Umrigar and Sukumar Ghose, for the appellants. S.   M. Bose, Advocate-General for the State of West Bengal, A.  C.  Mitra,  D.  N. Mukherjee and P.  K.  Bose,  for  the respondent. B.   Sen,  P.  K.  Chakravarty  and B.  N.  Ghosh,  for  the interveners. 1959.  November 25.  The Judgment of the Court was delivered by SARKAR J.-There are five appellants before us.  Four of them were  employees of a company called the Indian Iron &  Steel Co., Ltd. and the fifth an outsider. The appellants were convicted by a Magistrate of Asansol  in West  Bengal,  of an offence under s. 27 of  the  Industrial Disputes Act, 1947, hereinafter referred to as the Act,  for having  instigated  and incited others to take  ’art  in  an illegal  strike.   Each appellant was  sentenced  to  simple imprisonment for three months.  On appeal by the appellants, the learned Additional Sessions Judge of Asansol,  confirmed the order of the learned Magistrate.  A petition to the High

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Court   at  Calcutta  against  the  order  of  the   learned Additional  Sessions Judge by way of revision  also  failed. The appellants have now appealed to this Court with  special leave.   The respondent to this appeal is the State of  West Bengal and the Company has been allowed to intervene. The Company owns a factory at Burnpur near Asansol in  which there  is  a Sheet Mill.  The factory was  declared  by  the Government  to  be a public utility service.   There  was  a slow-down strike in the Hot Mill section of the Sheet  Mill. The  Company thereupon issued charge-sheets to some  of  its workers,  including the four appellants in  its  employment, for  taking  part in the slow-down  strike  and  instigating others to join it as also for other misconduct and 322 after  an  enquiry,  dismissed these  four  appellants  from service.  On such dismissal the slow-down strike  gained  in strength.  Thereupon, on April 8, 1953, the  Company  issued a notice to the workers of the Hot Mill the relevant portion of which is set out below: "The  workers  of  the Hot Mills (Sheet  Mills)  are  hereby notified   that   unless  they  voluntarily   record   their willingness to operate the plant to its normal capacity they will be considered to be no longer employed by the  Company, after  which the Company will recruit -other labour  to  man the Plant. The  workers  must record their willingness  before  Friday, 10th April, 2-0 p.m., otherwise action as stated above  will be taken." As  a  result of this notice forty workers of the  Hot  Mill recorded  their  willingness but the rest,  who  were  about three  hundred in number, did not make any response at  all. In fact, on April 11, 1953, the workers in the entire  Sheet Mill numbering about one thousand and three hundred, went on a sit-down strike which lasted till April 20, 1953. On April 25, 1953, the Company issued another notice to  the workers which is set out below: " In accordance with General Manager’s Notice dated the  8th April,  1953,  you  have been considered  to  be  no  longer employed by the Company after 2 p.m. on Friday, 10th  April, 1953,  as  you did not record your willingness  before  that date  and time to operate the Plant to its normal  capacity. Your  formal discharge from Company’s service bad been  kept pending  in order to assure to the fullest that no  one  who wanted   to   work  normally,  was   being   discharged   on circumstantial assumptions. Now,  however, there are no further reasons to believe  that every one concerned has not all necessary information  about the  facts  of  the case and every  opportunity  to  form  a correct and legitimate opinion on the utterly  irresponsible attitude adopted by some of the workers. A  copy of the notice dated the 22nd April, 1953, issued  by the Directorate of Labour, Government of                             323 West  Bengal, which has already been widely  circulated,  is attached herewith, in English with translations in  Bengali, Hindi and Urdu. You  are, therefore, hereby given a final Notice that if  by 11  a.m.  on  28th  April, 1953,  you  do  not  record  your willingness  to  operath the Plant to its  normal  capacity, your  name will be removed from the Company’s Roll and  your discharge   will  become  fully  effective  with   all   the implications of a discharge on grounds of serious breach  of discipline.’ and your place will be filled by promotion from amongst the existing men or by engaging new men." After this notice the workers of the entire factory,  except

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those  engaged  in essential services, went on a  strike  on April 27,1953, which lasted for twenty two hours. On  May 19, 1953, the Company filed a complaint under s.  27 of  the Act with the sanction of the Government  granted  on May  2,  1953.   Out of this complaint  the  present  appeal arises.  The respondent’s case is that the strikes of  April 11, to April 20, 1953, and April 27, 1953, were illegal  and the appellants had instigated them.  The appellants have not in  this  Court challenged the finding of the  Courts  below that  the  strikes took place and that they  had  instigated them, but they contend that the strikes were not illegal. Section 27 of the Act provides that a person who  instigates or  incites  others to take part in, or  otherwise  acts  in furtherance  of  a strike, which is illegal under  the  Act, commits  an  offence.   The respondent’s case  is  that  the strikes  were  illegal  under  s. 24(1)  of  the  Act  which provides that a strike or a lock-out shall be illegal if  it is  commenced or declared in contravention of s. 22.   There is  no dispute that the strikes were in contravention of  s. 22.  The appellants rely on s. 24(3) of the Act under  which a  strike  declared in consequence of  an  illegal  lock-out shall  not be deemed to be illegal and say that the  strikes had  been  in  consequence of an  illegal  lock-out  by  the Company of the three hundred workers of the Hot 324 Mill  by the notices of April 8, and April 25.  It is  clear that   if  there  was  such  a  lock-out,  it  was   illegal under  s. 24(1) for it would be clearly in contravention  of s.  22. The   question  then  is,  was  there  a  lock-out  by   the Company?   The  learned Advocate for  the  appellants  first contends that the notices use the same words as are used  in the  definition  of  a lock-out in s. 2(1) of  the  Act  and therefore  by those notices the Company locked-out the  men. We think that this argument is unfounded.  The definition so far as is material reads, " lock-out means the refusal by an employer to continue to employ any number of persons employ- ed by him." In the notices the words are " considered to  be no  longer employed " while the definition uses the words  " refusal  by the employer to continue to employ."  Therefore, the words are not the same.  Furthermore, the words used  in the  notices and in the definition have to be read in  their respective contexts.  For reasons to appear later, the words used in the notices meant a discharge of the employees  from service  while  the  words used in  the  definition  do  not contemplate such a discharge of the workmen. The  Courts  below have come to the finding  that  by  these notices  the  three  hundred workers of the  Hot  Mill  were discharged  on April 10, 1953, and had not been  locked-out. The  learned Advocate for the appellants says that  in  this the  Courts were wrong.  He puts his arguments in two  ways. First,  he says that the notices did not effect a  discharge till  April 28, 1953, and they had in the meantime  resulted in  a  lockout of the workers from April 10,  1953,  in  the sense  that their services had not been terminated but  they had  not  been allowed to attend to their duties.   Then  he says  that  even if the notices effected a  discharge,  then also  there  was a lock-out, for a discharge  is  equally  a lock-out within the meaning of its definition in the Act  as the prevention by an employer of the workers from  attending to their duties without discharging them, is. Did the notices then effect a discharge ? We agree with  the Courts below that they did.  The learned                             325 Advocate  for the appellants contends that the  two  notices

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taken  together  make it perfectly clear that there  was  no discharge  of  any employee prior to 11 a. m. of  April  28, 1953.   He says that the notice of April 25, shows that  the notice  of April 8, did not effect any discharge,  for,  the first  mentioned notice ,jays that the formal discharge  had been kept pending and it also required the workers to record their  willingness  to  operate  the  plant  to  its  normal capacity  by 11 a. m. on April 28, and further  stated  that failing this their names would be removed from the Company’s roll and their discharge would become fully effective. We are unable to read the notices in the way suggested.  The notice  of April 8, clearly stated that unless  the  workers notified  their  willingness  to operate the  plant  to  its normal  capacity  by  2 p. m. on April  10,  they  would  be considered to be no longer in the employment of the Company. It  plainly  meant  that  on their  failure  to  record  the willingness  by the time mentioned, the workers would  cease to  be in the employment of the Company, that is,  in  other words,  discharged.  Taken by itself, we do not think it  is capable  of any other meaning.  We are also unable to  agree that  there  is anything in the notice of  April  25,  which would  show that a different meaning ought to be put on  the words  used  in the notice of April 8,  than  they  normally bear.   The  later notice also states that the  workers  bad been  considered  to be no longer employed  from  April  10. Hence  it maintains that the workers had been discharged  on April  10.  It no doubt says that the formal  discharge  had been kept pending but that only means, as is clear from  the last paragraph of the notice, that the names of the  workers had  not  been removed from the Company’s  roll.   The  word "formal"  must have its due meaning; it emphasises that  the real  discharge had already taken place.  We may also  state that  it has not been contended before us that there can  be no  discharge till a worker’s name is removed from the  roll and,  without  more,  we do not think  that  we  would  have accepted  that contention if made.  The removal of the  name of a worker from the roll follows his discharge and that is 42 326 what  was  meant by the statement in the notice "  that  the formal  discharge had been kept pending." The circumstances which led to the issuing of the notice  of April  25  also  show that the  workers  had  actually  been discharged  on  April 10.  What had  happened was  that  the Labour  Minister  of  the  Government  of  West  Bengal  had intervened  in  the  dispute between  the  Company  and  its workers.  He met the workers and on April 21, 1953, that is, after  the  termination  of the first of  the  two  strikes, suggested  certain terms for the settlement of the  dispute. His  suggestion was that " if the workers of the Hot  Mills, who  stand  discharged from 2 p.m. of April 10, 1953,  as  a consequence  of their disregarding the notice issued on  8th April,  1953,  report themselves for  duty  immediately  and record their willingness to operate the plant to its  normal capacity, the Government would recommend their reinstatement to the Management." A copy of this suggestion was  forwarded to the Company by the Government with a request to implement the  recommendations contained in it with a further  request to  give  the  suggestion a  wide  publicity.   The  company circulated  the  Labour  Minister’s  suggestion  among   the workers  and to comply with his request to implement it,  it issued  the  notice  of April 25, to which  a  copy  of  the suggestion  was attached.  It is, therefore, clear that  all that  the Company intended to do by the notice of April  25, was  to  comply with the Government’s suggestion and  so  to

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cancel  the discharge of the workers of the Hot  Mill  which had already taken effect and reinstate them in their  former employments  if  the workers carried out their part  of  the suggestion.   This notice, therefore, does not  support  the contention  that  the workers had not been  discharged  till April 28, 1953. We may also state that there is no evidence that prior to  2 p.m.  of April 10, 1953, any employee had been prevented  by the Company from attending to his duty. The next question is whether a discharge of employees by  an employer  amounts to a lock-out.  It is said that the  words used in the definition of a lock-out,                             327 namely,  "the refusal by an employer to continue  to  employ any  number of persons employed by him’ cover the  discharge of  employees by an employer.  The contention so raised  was rejected by the Labour Appellate Tribunal in Presidency Jute Mills.   Co.  Ltd. v. Presidency Jute  Mills  Co.  Employees Union  (1).  We are in entire agreement with the view  there expressed. It seems to us that to construe the definition as  including a discharge would be against the entire tenor of the Act and also  against  the meaning of a lock-out  as  understood  in industrial relations. By virtue of s. 22 of the Act, in a public utility  ,service no worker can go on strike nor can an employer lock-out  his workmen  without  giving  notice of strike  or  of  lock-out within  six weeks before the strike or lock-out as the  case may be or within fourteen days of such notice or before  the date  fixed  in such notice or during the  pendency  of  any conciliation  proceedings before a conciliation officer  and seven  days  after  the  conclusion  thereof.   Section   23 prohibits   strikes  and  lock-outs  in   other   industrial establishments   during   the   pendency   of   conciliation proceedings  before a Board and for seven  days  thereafter. Section 24(1) makes a strike and a lock-out in contravention of ss. 10, 22 and 23, illegal.  Section 24(2) provides  that a strike declared in consequence of an illegal lock-out  and a  lock-out  declared in consequence of  an  illegal  strike shall not be illegal.  Section 25 prohibits the spending  of money on illegal strikes and lock-outs. The  Act therefore treats strikes and lock-outs on the  same basis;  it  treats one as the counterpart of the  other.   A strike  is a weapon of the workers while a lock-out that  of the employer.  A strike does not, of course, contemplate the severance of the relation of employer and employed; it would be strange in these circumstances if a lock-out did so. Under the provisions of s. 22, a lock-out cannot be declared in a public utility service immediately; it can be  declared only  after  the  date fixed in the  notice  and  cannot  be declared  within fourteen days of the giving of the  notice. Now, if a discharge is included in a (1)  [1952] L A.C. 62. 328 lock-out, an employer in such a service cannot discharge his employee, except after the time specified.  Now, that  would often make it impossible for the   employer to carry on  his business.   It  is  conceivable   that an  employee  may  be guilty  of such misconduct that his immediate  discharge  is essential.   Indeed., there is no reason to think that  such cases  would  be   very infrequent.  In such a  case  if  an employer  is  prevented on pain  of  being  made  criminally liable under s. 27 from discharging the employee forthwith, irreparable  mischief may be caused to his works or  serious personal injury -to himself or his other employees.  We have

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no  reason  to think that the Act intended  such  a  result. Again, if a lock-out included a discharge, then there  would be  a conflict between ss. 22 and 23 on the one hand and  s. 33 on the other.  As has already been stated, ss. 22 and  23 prohibit  a lock-out of workers during the pendency  of  the conciliation proceedings, therein mentioned, and seven  days thereafter. According to the interpretation suggested by the learned  Advocate  for the appellants, during this  time  no worker could at all be discharged for a lock-out includes  a discharge,  it being remembered that the prohibition in  the section  is absolute.  Under s. 33 however, an  employer  is prohibited during the pendency of a conciliation proceeding, from discharging a workman concerned in the dispute for  any misconduct connected with such dispute save with the express permission  of the authority before whom the  proceeding  is pending.   So if a lock out includes a discharge, under  ss. 22 and 23 there can be no discharge during the  conciliation proceedings  while under s. 33 there could be one  with  the permission of the authority conducting the proceeding.  If a discharge  amounted  to a lock-out, an absurd  result  would thus be produced. By an amendment made on October 2, 1953, certain  provisions have  been introduced into the Act which would show  clearly that  a  lock-out as defined in s. 2(1), which  section  has been left unaltered by the amendment, was never intended  to include a discharge of                             329 workmen.   We  refer  first  to s.  2(oo)  by  which  a  new definition  was  introduced in the Act which, so far  as  is necessary  for  the  present purpose,  is  in  these  words: Retrenchment  means the termination by the employer  of  the service  of  a workman for any reason  whatsoever  otherwise than  as  a  punishment inflicted  bY  way  of  disciplinary action. If  lock-out  includes  a discharge,  then  retrenchment  as defined  in  s.  2(oo) would also  clearly  be  a  lock-out. Obviously, if that were so, then retrenchment would not have been  separately  defined.   Again,  tinder  s.  25F,   also introduced  into the Act by the amendment, a workman may  be retrenched by paying him wages for a month, the compensation provided, and on notice to the Government.  If  retrenchment was  a form of lockout, then there would clearly be  a  con- flict  between ss. 22 and 23 on the one hand and s.  25F  on the other.  Section 2(oo) and s. 25F were, no doubt, not  in the  Act  at  the  date of the notices  with  which  we  are concerned,  but  since s. 2(1) was not amended  it  must  be taken that its meaning remained after the amendment what  it was before.  Since the amendment made it clear that s.  2(1) did  not  include  a  retrenchment,  it  follows  that  that definition  did  not  include a retrenchment  prior  to  the amendment.   If  it  did not then  include  a  retrenchment, neither  could  it  include a  discharge,  for,  plainly,  a retrenchment is but one form of discharge. It,  therefore, seems to us that the words " refusal  by  an employer  to  continue  to  employ  any  number  of  persons employed by him " in s. 2(1) do not include the discharge of an employee.  We feel no difficulty in taking this view, for it  does not seem to us that the words "refusal to  continue to  employ" in s. 2(1) plainly include a  discharge.   These words  have to be read with the rest of the  definition  and also  the word lock-out.  The other parts of the  definition contemplate  no  severance of the relation of  employer  and employed.   The  word  "  lock-out  ",  as  stated  in   the Presidency Jute Mills Co’s case (1), in its dictionary sense means refusal on the part of an employer to furnish work  to

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his operatives except on conditions to (1)  [1952] L.A.C. 62. 330 be  accepted by the latter collectively.   Therefore,  inour opinion,   the  rules  of  interpretation  do  not   prevent us  from  giving  to the words used in  the  definition  the meaning   "  a  refusal  by  the  employer  to   allow   any number of persons employed by him to attend to their  duties without  effecting a termination of service as was  done  in the Presidency Jute Mills Co’s case (1),  which would  avoid one part of the Act coming in conflict with another. The  last  point  raised  is  about  the  propriety  of  the sanction.  Section 34(1) of the Act provides, No  court  shall take cognisance of any  offence  punishable under  this  Act    save on complaint made by or  under  the authority of the ap. propriate Government. The   learned  Advocate  for  the  appellants   relying   on Gokalchand  Dwarkadas  Morarka  v. The  King  (2),  where  a provision somewhat similar to s. 34(1) was considered by the Judicial  Committee, contended that the sanction granted  in the  present  case by the Government of the West  Bengal  to file the complaint against the appellants was bad as it  had been granted without reference to the facts constituting the offence.  It is true that the sanction does not on the  face of  it refer to the facts constituting the  offence.   There is,  however, ample evidence in this case, which we did  not understand  the  learned  Advocate  for  the  appellants  to challenge  and  which clearly establishes  that  the  entire facts connected with the offence had been placed before  the sanctioning authority and the sanction had been granted on a consideration  of them.  The Judicial committee in the  case above-mentioned  itself observed that the sanction would  be good  if it was proved by evidence that it had been  granted after  all  the necessary facts had been placed  before  the sanctioning authority though these facts might not have been stated  on  the face of the sanction itself.   It  therefore seems  to  us  that  the sanction in  the  present  case  is unobjectionable. We feel, therefore, that the appeal must fail.  We think  it right however in the circumstances of this case and in  view of the long lapse of time since the (1) [1952] L.A.C. 62.        (1948) L.R. 75 I.A. 30. 331 case started, to modify the sentence passed.  In our view, a sentence  of  simple  imprisonment for  the  period  already served and a fine of Rs. 100 with simple imprisonment for  a period of fifteen days in default of payment of the fine for each appellant will be sufficient in this case and we  order accordingly. Subject to this modification of the sentence, this appeal is dismissed.                      Appeal dismissed.