25 March 1964
Supreme Court
Download

LABOUR COMMISSIONER, MADHYA PRADESH Vs BURHANPUR TAPTI MILLS AND OTHERS

Case number: Appeal (civil) 529 of 1963


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: LABOUR COMMISSIONER, MADHYA PRADESH

       Vs.

RESPONDENT: BURHANPUR TAPTI MILLS AND OTHERS

DATE OF JUDGMENT: 25/03/1964

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.

CITATION:  1964 AIR 1687            1964 SCR  (7) 484

ACT: Industrial   Dispute-Strike-Legality-Whether  employer   can decide and take action-Jurisdiction of Labour  Commissioner- "Rendered  illegal" in s. 42(1)(g) if means  "held  illegal" Central   Provinces  and  Berar  Industrial   Disputes   and Settlement  Act, 1947 (C. P. and Berar Act 33 of 1947),  ss. 16, 41 and 42(1)(g).

HEADNOTE: An  employee  was  summarily  dismissed  by  the  respondent employer after holding an enquiry on the allegation that  he had  instigated  workers to go on an  illegal  strike.   The employee applied under s. 16 of Central Provinces and  Berar Industrial   Disputes   Settlement   Act   to   the   Labour Commissioner, who held that authority to decide the legality of  a strike had been entrusted by s. 41 of the Act  to  the State Industrial Court or the District Industrial Court  and that  before  a  strike had been held  by  either  of  these authorities to be illegal the employer had no right to  take any action against his workmen on his own view that a strike was  illegal and ordered the reinstatement of  the  employee with full wages.  The revision application by the respondent employer  to the State Industrial Court proved  unsuccessful through  it disagreed with the Labour Court’s view that  the employer  could not take action before a decision  from  the State  Industrial  Court or the  District  Industrial  Court declaring  the  strike  to be  illegal  had  been  obtained. Thereafter,  the  employer moved the High Court  under  Art. 226.  The High Court was of the view that though the  Labour Commissioner  may  not have the jurisdiction to  decide  the question  of  illegality  of a strike,  it  may  decide  the question incidentally for the purposes mentioned in s. 16 if in  an  enquiry such a question is raised, and  quashed  the orders  of the Labour Commissioner and the State  Industrial Court.   On appeal preferred by the Labour  Commissioner  in this Court. Held:  (i) The employer is free to take action  against  the employee  as soon as he thinks that the strike in  which  he has participated comes within the provisions of s. 40 of the Act.  The phrase "rendered illegal" in s. 42(1)(g) has  been deliberately  used in contradistinction to the  words  "held

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

illegal" used in ss. 43, 44 and 45. It would be an impossible position for industrial management if after notice has been given of a strike or a strike ha,,, started  which the employer considers to be  illegal  within the  meaning  of S. 4o he should be compelled  to  stay  his hands  and wait till a State Industrial Court or a  District Industrial Court has given a declaration on the question. The use of the word "shall" in s. 41 in connection with  the action  to be taken on a reference by the  State  Government and "may" in connection with the action on an application by others in the same section compels the conclusion that on an application by anybody other than the State Government,  the State  Industrial Court or a District Industrial  Court  may also refuse to take action. 485 (ii) For performing its functions under s. 16(3) of the  Act the  Labour  Commissioner  has jurisdiction  to  decide  the question  of  legality or illegality of a strike  when  that question is raised before it.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 529 of  1963. Appeal  by special leave from the judgment and  order  dated September  24,  1958, of the Madhya Pradesh  High  Court  in Misc.  Petition No. 82 of 1958. I.   N. Shroff, for the appellant. M. C. Setalvad B. Narayanaswamy, J. B. Dadachanji,  Ravinder Narain and O. C. Mathur, for respondent No. 1. M.S.K. Sastri and M. S. Narasimhan, for respondent No. 2. March 25, 1964.  The judgment of the Court was delivered by DAS GUPTA, J.-Two main questions arise in this appeal.   The first  is whether s. 42(1)(g) of the Central  Provinces  and Berar Industrial Disputes and Settlement Act, 1947 prohibits an  employer  from  taking  action  against  a  workman  for participation in an illegal strike before it is so  declared under  s. 41 of the Act.  The second question is whether  in an  application  made under s. 16(3) of the Act  the  Labour Commissioner  has  jurisdiction to decide  the  legality  or illegality of the strike. On  September 21, 1956 the first respondent in this  appeal, the Burhanpur Tapti Mills Ltd., served a charge-sheet on one of the employees Sulemankhan Mullaji, who is the second res- pondent  in  the  appeal alleging  that  he  had  instigated workers of the Weaving Department to go on an illegal strike earlier that day.  After holding an enquiry into the  matter the Manager came to the conclusion that the charge had  been established   being   of  opinion  that   this   constituted misconduct   under  cl.  25(b)  of  the   Standing   Orders. Thereafter, the Manager ordered Sulemankhan to be  summarily dismissed without notice and without compensation in lieu of notice.  Sulemankhan made an application against this  order to  the Labour Commissioner, Madhya Pradesh under s.  16  of the   Central  Provinces  and  Berar   Industrial   Disputes Settlement  Act,  1947.   The  Labour  Commissioner  was  of opinion  that  the  authority to decide the  legality  of  a strike  had  been  entrusted  by s. 41 of  the  Act  by  the legislature  to the State Industrial Court or  the  District Industrial  Court.   He also held that before a  strike  had been  held by either of these authorities to be illegal  the employer had no right to take any action against his workmen on  his  own  view that a strike was  illegal.   The  Labour Commissioner  further held that there was no legal  evidence to  prove  the allegations against Sulemankhan and  that  in

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

inflicting  the punishment of dismissal the Manager had  not paid  due  regard  to sub cl. 4 of cl. 26  of  the  Standing Orders.  Accordingly, he ordered 486 the  reinstatement of Sulemankhan with full wages  from  the date of dismissal to the date of reinstatement. The revision application by the first respondent proved  un- successful.   The  State  Industrial  Court,  which  is  the revisional     authority, disagreed with the Labour  Court’s view  that  the  employer could not  take  action  before  a decision  from  the State Industrial Court or  the  District Industrial Court declaring the strike to be illegal had been obtained.  Being however of opinion that the enquiry had not been held in accordance with the Standing Order in cl. 26(2) and also that in awarding the punishment the Manager had not taken  into  consideration  the  matters  mentioned  in  the Standing Orders in cl. 26(4), the Industrial Court concluded that the Labour Commissioner was justified in examining  the evidence  for itself.  It further held that the  finding  of fact   given  by  the  Labour  Commissioner  could  not   be challenged  in revision.  The final conclusion of the  State Industrial  Court, as already indicated, was that the  order of  reinstatement made by the Labour Commissioner was  fully justified. Against this order the employer (the first respondent) moved the  High  Court  of Madhya Pradesh under Art.  226  of  the Constitution.  The High Court indicated its view that though the  Labour Commissioner may not have the  jurisdication  to decide the question of illegality of a strike, it may decide the  question incidentally for the purposes mentioned in  s. 16  of  the Act if in an enquiry under s. 16 a  question  is raised  that  the  dismissal was wrongful as  there  was  no incitement  of  an  illegal strike under cl.  25(b)  of  the Standing Orders.  After expressing this view the High Court, however,  added the words: "That aspect of the  matter  need not be considered because the strike instigated here was not held  to be a legal strike." The High Court was  of  opinion that  the  Industrial  Court had fallen  into  an  error  in thinking  that  the charge sheet served on the  workmen  was defective.    It   also  held  that   neither   the   Labour Commissioner   nor  the  State  Industrial  Court  had   any jurisdiction  to  examine  the  findings  of  the   domestic tribunal as an appellate authority and to come to a contrary conclusion  on  the same evidence.   Accordingly,  the  High Court quashed the orders of the Labour Commissioner and  the State Industrial Court. The  present  appeal  has  been  preferred  by  the   Labour Commissioner,  Madhya Pradesh, No appeal has been  preferred by the workman himself.  It is therefore unnecessary for  us to  consider in this appeal the correctness or otherwise  of the  High Court’s decision on the merits of the case.   What we  have to decide, as already indicated is whether sec.  42 of  the  Central  Provinces and  Berar  Industrial  Disputes Settlement Act, 1947 487 stood  in  the way of the employer taking action  against  a workman for participation in an illegal strike before it had been  declared to be so under s. 41; and  secondly,  whether when there has been no such decision the Labour Commissioner has  jurisdiction  to  decide the question  of  legality  or illegality of the strike in an application made to him under s. 16 of the Act. The relevant provisions of s. 42 which require consideration for a decision of the first question are that: "No  employer shall dismiss, discharge, suspend or reduce any employee  or

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

punish him in any other manner solely by reason of the  cir- cumstance  that  the employee has participated in  a  strike which is not "rendered illegal" under any provision of  this Act."  The provisions of the Act rendering a strike  illegal are set out in s. 40. Prima facie it appears that it is only where the strike in which an employee has participated  does not  come  within any of the provisions of s.  40  that  the employer is prohibited from taking action against him.   The prohibition  operates  only when a strike is  not  "rendered illegal" under any provisions of the Act.  That, it is urged by the respondent-employer, is the same thing as saying that the  prohibition  operates  only where  the  strike  is  not illegal within the meaning of the provisions of s. 40 of the Act. The  argument  on behalf of the appellant is that the  words "rendered  illegal"  in  s. 42  (1)(g)  should  properly  be construed  as "held illegal".  It has to be noticed in  this connection that s. 41 of the Act provides a machinery  under which  not  only the State Government but  any  employer  or employee  can  approach  the State  Industrial  Court  or  a District Industrial Court for a decision whether a strike or a lockout of which notice has been given or which has  taken place  is illegal.  According to the appellant, it  is  only after on such an application the State Industrial Court or a District  Industrial  Court  has decided that  a  strike  is illegal,  that the employer can take action.  We are  unable to  see  any justification for such a construction.   It  is clear  to  us  that  the phrase  "rendered  illegal"  in  s. 42(1)(g) has been deliberately used in contradistinction  to the words "held illegal" used in ss. 43, 44 and 45.  Section 43 provides penalty on an employer who " declares a  lockout which is held by the State Industrial Court or the  District Industrial  Court  to  be  illegal".   Section  44  provides penalty  against  an employee "who goes on a strike  or  who joins  a strike which is held by the State Industrial  Court or the District Industrial Court to be illegal".  Section 45 provides  penalty  for  instigation  or  incitement  to   or participation  or  acting  in furtherance  of  a  strike  or lockout "which is held to be illegal by the State Industrial Court   or  the  District  Industrial  Court".    When   the legislature  used  the  words "held illegal"  by  the  State Industrial Court or the District Industrial Court in ss. 43, 44 and 45 but used different phraseology, 488 viz.,  "rendered illegal" in s. 42(1‘)(g) the conclusion  is irresistible  that this was done deliberately.   The  reason for  this  is not far to seek.  However, quickly  the  State Industrial Court or the District Industrial Court may act on an  application under s. 41 the decision on the legality  or otherwise of a strike is bound to take a considerable  time. It would be an impossible position for industrial management if  after notice has been given of a strike or a strike  has started  which the employer considers to be  illegal  within the meaning of s. 40 he should be compelled to stay his hand and  wait  till  a  State Industrial  Court  or  a  District Industrial  Court has given a declaration on  the  question. It  also appears clear that these authorities are not  bound to give a decision on an application by the employer.               The Section runs thus: -               Court shall, on a reference made by the  State               Government, and may, on an application by  any               employer   or  employee  concerned  or  by   a               representative  of the employees concerned  or               by  the  Labour Officer,  decide  whether  any               strike  or  lockout  or any  change  of  which

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

             notice has been given or which has taken place               is illegal." it has to be noticed that while on a reference by the  State Government   the  State  Industrial  Court  or  a   District Industrial Court "shall" decide the question of legality  of the  strike or lockout, it "may" decide the question  on  an application by the employer or employee or any other  person mentioned  in the section.  The use of the word  "shall"  in connection with the action to be taken on a reference by the State Government and "may" in connection with the action  on an  application  by others in the same section  compels  the conclusion that on an application by anybody other than  the State  Government, the State Industrial Court or a  District Industrial  Court  may  also refuse  to  take  action.   The suggested  construction of the words "rendered  illegal"  as "held illegal" might therefore have the curious result  that even though the strike is in fact illegal within the meaning of  s.  40  of the Act no action can at any  time  be  taken against  an  employee  for participation  in  it.   We  have accordingly come to the conclusion that the words  "rendered illegal"  does not mean "held illegal" and the  employer  is free  to  take  action against the employee as  soon  as  he thinks  that the strike in which he has  participated  comes within the provisions of s. 40 of the Act. When the employer takes such action against the employee  by dismissing, discharging, removing or suspending him, it will be open to the employee to apply to the Labour  Commissioner for reinstatement and payment of compensation for loss of 489 wages.   This is provided in s. 16(2) of the  Act.   Section 16(3)  provides that if on receipt of such  application  the Labour Commissioner after such enquiry as may be  prescribed finds  that the dismissal, discharge, removal or  suspension was in contravention of any of the provisions of this Act or in  contravention  of a Standing Order  made  or  sanctioned under this Act or was for a fault or misconduct committed by the employee more than six months prior to the date of  such dismissal,  discharge, removal or suspension, he may  direct reinstatement of the employee or other relief.  The question has  been  raised  whether  when  the  order  of  dismissal, discharge, removal or suspension purports to have been  made for participation in or instigation to an illegal strike  it is open to the Labour Commissioner to decide the question of illegality  of a strike.  On behalf of the appellant it  has been  suggested  that exclusive jurisdiction to  decide  the question  of  legality or illegality of a  strike  has  been given  by  the Act to the two authorities, viz.,  the  State Industrial   Court  or  a  District  Industrial  Court,   as mentioned  in s. 41. There is no doubt that s. 41 which  has been set out above empowers the State Industrial Court or  a District Industrial Court to decide the question of legality of a strike on a reference by the Government, or application by employer or employee or others mentioned in the  section. Mr. Shroff argues that it could not have been the  intention of  the legislature to have two parallel  bodies-the  Labour Commissioner  as  well as the State Industrial  Court  or  a District Industrial Court-having jurisdiction to decide such a matter.  For, as he points out, it may well be that  while on  an  application under s. 16(3) the  Labour  Commissioner holds that the strike was not illegal the contrary view  may be  taken  by  the State Industrial Court  or  the  District Industrial  Court  on  an application under s.  41  or  vice versa.   This argument is plausible at first  sight.   There is,  however,  one great difficulty in accepting  it.   That consists  in the fact, already pointed out, that  the  State

6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

Industrial Court or a District Industrial Court is not bound to  give  any decision at all on application  by  any  party other  than  the State Government.  There being  thus  cases where  the  authorities  mentioned in s. 41  may  refuse  to decide  the question of legality or illegality of a  strike, it  is  not possible to say that exclusive  jurisdiction  is given  by s. 41 to these authorities to decide the  question of legality or illegality of a strike.  It is reasonable  to held  therefore that for performing its functions  under  s. 16(3) of the Act the Labour Commissioner has jurisdiction to decide  the question of legality or illegality of  a  strike when that question is raised before it. The appeal is accordingly dismissed.  No order as to costs. Appeal dismissed. 490