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PETITIONER: RAJA BAHADUR MOTILAL POONA MILLS

       Vs.

RESPONDENT: TUKARAM PIRAJI MASALE.

DATE OF JUDGMENT: 31/10/1956

BENCH: MENON, P. GOVINDA BENCH: MENON, P. GOVINDA BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA DAS, S.K.

CITATION:  1957 AIR   73            1956 SCR  939

ACT: Industrial Dispute-Strike-Change in the existing  system  of working-Workers  objecting  as illegal change and  going  on strike--Strike, whether illegal-Bombay Industrial  Relations Act, 1946 (Bom.  XI of 1947), s. 97(1)(c).

HEADNOTE: By s. 97(1)(c) of the Bombay Industrial Relations Act, 1946: "A  strike shall be illegal if it is commenced or  continued only  for the reason that the employer has not  carried  out the provisions of any standing order or has made an  illegal change". The  management  of the appellant Mill desiring  to  make  a change  in the existing system of working started making  an experiment  by asking a few workmen who had  volunteered  to work  at the rate of four looms to a weaver for a period  of two  months.   The other workers objected that this  was  an illegal  change on the ground that the management could  not legally introduce any change without first going through the procedure  prescribed by the Act, and went on  strike.   The question was whether the strike was illegal. Held,  that as the workmen had gone on strike only  for  the reason  that the change or experiment made by the  appellant was an illegal change, their action came within the  express terms of B. 97(1)(c) of the Act and the strike was illegal.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 323 of 1955. Appeal from the judgment and order dated July 2, 1953 of the Bombay  High Court in Special Civil Application No.  159  of 1953. R.   J. Kolah and A. C. Dave, for the appellant. H.   R.  Gokhale, K. R. Chaudhury and M. R. Rangaswamy,  for respondent No. 2. 1956.  October 31.  The Judgment of the Court was  delivered by  GOVINDA  MENON  J.-On  July 20, 1954,  the  High  Court  of Judicature at Bombay granted a certificate of fitness  under

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Art. 133(1) (c) of the Constitution 940 that  the judgment of that court dated July 2, 1953,  passed in Special Civil Application No. 159 of 1953, was a fit  one for appeal to the Supreme Court as it involved a substantial question   of   law,  and  it  is  in  pursuance   of   such certification  that  the  above appeal is  now  before  this court.  A brief resume of the facts and circumstances, which led to the application for a writ of certiorari in the  High Court,  becomes necessary for a correct appreciation of  the question  of  law involved and may,  therefore,  be  shortly stated. The  appellant  which  may hereafter,  for  the  purpose  of convenience,  be  called "The Mill", is  a  limited  company owning and possessing a Cotton Textile Spinning and  Weaving Mill situated in Poona, employing a large number of  workmen who  have  a  union of theirs. The  first  respondent  is  a workman  employed by the Mill and the second  respondent  is the Poona Girni Kamagar Union of which the first  respondent is  a  member.  Respondents 3 to 5 were  formally  added  as parties in the first in-stance, but their names were  struck off as unnecessary at the time of the hearing. The  appellant was running 580 looms, for working which  one weaver had been allotted at the rate of two looms; and  when things were in that state on August 29, 1951, the Management issued  a notice to the effect that from September 1,  1951, it was desired to carry on an experiment of four looms to  a weaver for a period of 2 months, on 16 looms.  If at the end of that period or before the expiry of the same it was found that  the  working  was  successful,  the  Management  would introduce  the  scheme  after giving the  notice  of  change required  under  the  Act.  The object of  this  notice  was ostensibly to introduce rationalization or rather efficiency system of work, if and when the suggested experiment  proved successful.   As  a result of this notice  on  September  4, 1951, the Secretary of the Union wrote to the Manager of the appellant  Mill intimating that under the Bombay  Industrial Relations Act the Management could not legally introduce any change  in  the existing system ,of  working  without  first giving notice of the change 941 in  the prescribed form to the representatives of the  Union and  workers and without going through the  other  procedure prescribed  by  the  Act; and the  Management  were  further informed  that  if they insisted in carrying on  the  change illegally,  the  workmen would be free to  move  the  proper courts.  The notice also stated that the introduction of the new  system would affect the workers’ wages and cause  great hardship; and that if anything untoward happened, the  blame would be wholly on the management, as it would be impossible for the Union to control the workers in the matter. Four workers volunteered to work the experiment and  started working  accordingly on the 16 looms on September  6,  1951, whereupon the other workmen raised an objection and the four loyal  workmen  were  prevented  from  continuing  with  the experimental work.- But the Management did not withdraw  the notice and none except the 4, was required by the Management to take part in the experiment.  The second shift among  the workmen also refused to work with the result that there  was a complete strike in the Mills between the 6th and the  26th of September, 1951. On  September  10, 1951 the appellant filed  an  application under sections 78 and 97 of the Bombay Industrial  Relations Act,  1946  (Bom.   XI of 1947),  praying  that  the  strike resorted  to  by  the weavers working  on  both  the  shifts

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commencing  on  September 6, 1951, and continuing  till  the presentation of the application be declared illegal being in contravention  of  the  provisions  of  the  said  Act.   On September  16, 1951 the Vice-President of the  Mill  Mazdoor Sabha filed a written statement in answer to the above  com- plaint  stating  that  the workers did not  strike  work  in contravention  of  the Bombay Industrial Relations  Act  and that the weavers never refused to do their proper and  usual work  but  refused only to do the illegal work  insisted  on them  by the employers; in other words, they were  agreeable to  have two looms per weaver and not to work the  attempted experiment.   Within three days of the filing of  the  above written 942 statement,  two  of the workers filed an  application  under sections  78 and 98 of the Bombay Industrial  Relations  Act before the same Labour Court against the Management  praying for  a  declaration that the action of  the  Management  had resulted in an illegal lockout in contravention of the  Act, and, therefore, the Management should be ordered to withdraw the  said  illegal change.  The appellant  filed  a  written statement  countering  the  allegations  contained  in   the application  for the declaration of an illegal  lockout  and ’stated  that their action was not in contravention  of  the Bombay Industrial Relations Act, as it did not constitute an illegal change. The  Labour  Court  at Bombay heard  both  the  applications together  and by a combined order dated September 26,  1951, held that since the Management had not compelled any one  to accept  any  work, their action could not  be-considered  an illegal lockout.  At the same time, it held that the workers did  not create a situation amounting to an illegal  strike. The  result of these findings was the negation of the  grant of the prayers contained in the respective applications, but in  addition,  the  court declared that the  action  of  the Management was an illegal change and, therefore, the  notice whereby the experiment was attempted to be tried, should  be withdrawn. The   workers  were  content  with  the  outcome  of   their application but the Management having been aggrieved by  the declaration  that  their  action  amounted  to  an  ’illegal change’ filed an appeal before the Labour Appellate Tribunal at  Bombay (Appeal No. 293 of 1951) upon which  the  learned Judges  of the Labour Appellate Tribunal took the view  that the strike by the workmen was illegal.  They also  concluded that  there  was no lockout on the part of  the  Management. That being the case, the order of the Labour Court declaring that  there  was an illegal change was set  aside  with  the declaration that the strike in question was illegal with the necessary consequences. I  In  order to get the said order of the  Labour  Appellate Tribunal quashed, an application for a writ 943 of  certiorari under Arts. 226 and 227 of  the  Constitution was filed by the two of the workers before the High Court of Bombay  where Chagla C.J. and Dixit J., took the  view  that since the decision of the Appellate Tribunal was  erroneous, the  same  should  be  quashed, with  the  result  that  the decision  of  the  Labour  Court was  upheld.   It  is  this judgment  that is under appeal before us as a result of  the certificate granted by the High Court of Bombay. A  reading  of  the  relevant portions  of  the  statute  is necessary to find out whether the order appealed against  is justified or not.  The Bombay Industrial Relations Act, 1946 was  enacted  to  regulate the  relations  of  employer  and

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employees,   to  make  provisions  for  the  settlement   of industrial  disputes  and  to  provide  for  certain   other purposes.  This statute repealed the Bombay Trade  ’Disputes Conciliation  Act, 1934 and the Bombay  Industrial  Disputes Act,  1938.   Section 3(8) defines "change"  as  meaning  an alteration in an industrial matter and sub-s. (15)  contains a  definition  of  ’illegal change’ as  meaning  an  illegal change within the meaning of sub-ss. (4) & (5) of s.   46 which are in the following terms:- "(1) .......................................... (2) ........................................... (3) ........................................... (4)Any  change  made in contravention of the  provisions  of sub-sections (1), (2) and (3) shall be illegal. (5)Failure  to carry out the terms of any settlement,  award (registered  agreement or effective order or decision  of  a Wage  Board),  (a  Labour  Court  or  the  Industrial  Court affecting,  industrial  matters) shall be deemed  to  be  an illegal change". Section 42 which speaks of change may also be quoted so  far as  it  is  relevant  for  our  purpose:      "(I)  Any  employer intending to effect any  change  in respect  of  an industrial matter specified in  Schedule  II shall give notice of such -intention in the prescribed  form to the representative of employees.  He shall send a copy of such  notice to the Chief Conciliator, the  Conciliator  for the industry concerned for the 944 local area, the Registrar, the Labour Officer and such other person  as may be prescribed: He shall also affix a copy  of such notice at a conspicuous place on the premises where the employees  affected by the change are employed for work  and at  such  other  place  as way  be  directed  by  the  Chief Conciliator in any particular case. "Industrial  matter’ has also been defined in the Act in  s. 3(18) in the following words: "Industrial matter’ means any matter relating to employment, work, wages, hours of work, privileges, rights or duties  of employers or employees, or the mode, terms and conditions of employment, and includes:- (a)all  matters  pertaining  to  the  relationship   between employers  and  employees,  or  to  the  dismissal  or  non- employment of any person; ( b)  all matters pertaining to the demarcation of  functions of  any employees or classes of employees;     (c)  all matters pertaining to any right or claim  under or  in respect of or concerning a registered agreement or  a submission, settlement or award made under this Act; (d)all  questions of what is fair and right in  relation  to any- industrial matter having regard to the interest of  the person  immediately  concerned  and of the  community  as  a whole;". Schedule  II,  para  4 mentions  "rationalization  or  other efficiency  system  of  work" and therefore  when  any  such rationalization  is  introduced, it is obligatory  upon  the employer  to  give  notice  of  such  an  intention  in  the prescribed form to the representatives of the employees.  We may  also  refer to s. 3(35-A) defining  ’stoppage’  in  the following terms:- "  Stoppage’ means a total or partial cessation of  work  by the  employee  in  an industry acting in  combination  or  a concerted refusal or a refusal under a common  understanding of employees to, continue to work or to accept work, whether such cessation or refusal is or is not in consequence of  an

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industrial dispute;". 945 Sub-section (36) defines ’strike’ as follows:- " ’Strike’ means a total or partial cessation of work by the employees  in  an  industry  acting  in  combination  or   a concerted refusal or a refusal under a common  understanding of  employees to continue to work or to accept  work,  where such cessation or refusal is in consequence of an industrial dispute". Chapter  XIV  of the statute concerns  itself  with  illegal strikes  and  lockouts  of which s. 97  deals  with  illegal strikes,  whereas  s.  98 deals  with  an  illegal  lockout. According to s. 97(1)(c), a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order  or made "an illegal change". In  considering whether the strike in question was  illegal. the  learned  Judges of the High Court  have  expressed  the opinion that there is a common law right for an employee  to stop work and that it is only by statutory prohibition  that certain  strikes have been made illegal in the  interest  of labour relations.  In the present case since there had  been no ’illegal change" effected by the employer, the High Court took  the  view that on the very finding  of  the  Appellate Tribunal  that the change was a legal change, the strike  in question did not come within the ambit of s. 97. Learned counsel for the appellant has pressed two  arguments before  us with regard to the construction of s. 97 (1)  (e) of  the Bombay Industrial Relations Act., 1946.   His  first argument  is that the High Court was in error when  it  held that  there was any such right as a common law right  of  an employee to go on strike and s. 97 constituted an inroad  on that right.  Learned counsel has submitted that under s.  97 (f)  (c)  a strike shall be illegal if it  is  commenced  or continued  only  for the reason that the  employer  has  not carried out the provisions of any standing order or has made an  illegal change; if a strike is illegal when it  is  com- menced  or continued only for the reason that  the  employer has  made an illegal change, a fortiori it must  be  illegal when  it is commenced or continued for a legal change.   The contention of learned counsel is 128 946 that  by  necessary implication cl. (c)  condemns  a  strike which  is commenced or continued for a change which  is  not illegal.  The second argument of learned counsel is that the true  scope and effect of cl. (c) is this: the  word  ’only’ -occurring in the clause goes with the word ’reason’ and  if the  strike  is commenced or continued for the  only  reason that  the employer has made an illegal change, it  shall  be illegal.   The  test  is not whether there was  a  legal  or illegal change in fact but what was the reason for which the employees went on strike, and if the employees. commenced or continued a strike only for the reason that the employer had made  an illegal change, the strike would be illegal  within the express terms of the clause. In  our  opinion it is unnecessary to decide  in  this  case whether  the  first  argument of  learned  counsel  for  the appellant is correct or not; because we are I clearly of the opinion  that  the  second  argument  with  regard  to   the construction  of  s.  97  (1)  (c)  is  correct  and  should prevail.. In this case the workmen themselves came to  court with the plea that the action of the employer amounted to an illegal  change.  In their application to the Labour  Court, they  said:  "That  for the above-mentioned  reasons  it  is

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prayed that this Honourable Court be pleased to declare  the said lockout by the opponent Mills as illegal being in  con- travention  of the Bombay Industrial Relations Act, and  the opponent  be ordered to withdraw the said  illegal  change". It  is  obvious, therefore, that the workmen  in  this  case struck  work  only  for  the  reason  that  the  change   or experiment  made  by the appellant employer was  an  illegal change.   The action of the workmen, therefore, came  within the express terms of s. 97 (1) (c) of the Act.  The  learned Chief Justice did not consider this aspect of the case,  and reached  a  conclusion with regard to the  legality  of  the strike on a reasoning which did not give full effect to  the words  used in s.97(1)(c). In our view,the true test was  to find  out the reason for which the strike was  commenced  or continued,  and  it was unnecessary to  consider  or  decide whether there was a common law right of the workmen to go on strike or whether the work- 947 -men had the right to go on strike as a means of  collective bargaining against a change which they did not like. Mr.  Gokhale appearing for the workmen has taken us  through the different provisions of the Bombay Industrial  Relations Act, 1946, and has contended that the workmen have the right to go on strike as a means of collective bargaining  against any  measure adopted by the employer which the  workmen  may consider to be detrimental to their interests, provided  the strike  does not come within the prohibited ambit of s.  97. Even  assuming that Mr. Gokhale is right in his  contention, it is clear to us that if the workmen commence or continue a strike  for  the only reason that the employer has  made  an illegal change, they come within the express terms of s.  97 (1)   (c).    It  is  immaterial  whether  the   change   is subsequently found by the Labour Court to be a legal change. It is worthy of note that there is a separate provision  for imposing  a  penalty  on an employer who  makes  an  illegal change.  The relevant consideration, however, with regard to s.  97  (1)  (c)  is the reason  for  which  the  strike  is commenced or continued.  That reason in this particular case is  clear  enough.  The workmen themselves  said  that  they commenced and continued the strike because the employer  had made an illegal change.  That being the position, the strike was  illegal within the express terms of s. 97(1)(c) of  the Act. We  are,  therefore,  of  the  opinion  that,  on  a  proper interpretation of s. 97(1) (c) of the -Act, the strike which was  commenced and continued from September 6, to  September 26, 1951, was clearly illegal. The  appeal  is, accordingly, allowed and the order  of  the High  Court dated July 2, 1953, is set aside.   The  result, therefore,  is that the order of the Labour Appellate  Court dated  September 4, 1952, stands, with the declaration  that the   strike  in  question  was  illegal  with   its   usual consequences. In  this case, the appellant had agreed, while asking for  a certificate  from the Bombay High Court for leave to  appeal to  the  Supreme  Court,  to pay  the  taxed  costs  of  the respondents in one set.  Learned 948 counsel for the appellant himself has drawn our attention to the  agreement.  In view of that it is not necessary for  us to  decide  in this case whether it was open to  the  Bombay High Court to pass any order about costs in this Court while granting  a certificate of fitness under Art. 133(1) (c)  of the  Constitution, and we direct that the  appellant  should pay  to the respondents the costs of this appeal in one  set

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and bear its own costs thereof.                                     Appeal allowed.