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PETITIONER: THE MANAGEMENT OF CHANDRAMALAIESTATE, ERNAKULAM

       Vs.

RESPONDENT: ITS WORKMEN AND ANOTHER.

DATE OF JUDGMENT: 04/04/1960

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

CITATION:  1960 AIR  902            1960 SCR  (3) 451  CITATOR INFO :             1963 SC 601  (6)  RF         1969 SC 998  (23)  RF         1970 SC 867  (43)  RF         1973 SC1156  (11)  RF         1981 SC 340  (14)

ACT: Industrial  Dispute--Failure of conciliation--Union to  take Proper and reasonable course before calling a strike.

HEADNOTE: The  management  having refused to comply with some  of  the demands  raised  by  workmen, the matter  was  referred  for conciliation.   Efforts at conciliation failed  on  November 30,  1955.  on  the very next day the union  gave  a  strike notice and actually went on strike with effect from December 9,  1958.  On January 3, 1956, the Government  referred  the dispute to the Industrial Tribunal and the strike was called off  on  January 5, 1956.  The question as  to  whether  the workmen  were entitled to get wages for the period  of  the’ strike  was  along with some other grounds referred  to  the Tribunal.  The Tribunal took the view that both the  parties were  to  blame  for the strike and that  the  workmen  were entitled  to  get 50% of the emoluments for  the  period  of strike: Held,  that  on  the  facts  of  the  case  the  strike  was unjustified  and that the workmen were not entitled  to  any wages for the period. When conciliation attempts failed it was reasonable for  the union  to take the normal and reasonable course provided  by law to settle the dispute by asking . the Government to make a reference to the Industrial Tribunal before it decided  to strike.  A strike which is a legitimate weapon in the  hands of the workmen would not be ordinarily justified if  hastily resorted  to  without  exhausting  reasonable  avenues   for peaceful achievement of the object.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 347/1959.

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Appeal  by  special  leave  from  the  Award  dated  October 17,1957,  of the Industrial Tribunal No. 11,  Ernakulam,  in Industrial Dispute No. 63 of 1956. S. Govind Swaminadhan and P. Ram Reddy, for the appellant. Jacob  A.  Chakramakal and K. Sundararajan,  for  respondent No.1 K. R. Choudhry, for respondent No. 2. 1960.  April 4. The Judgment of the Court was delivered by 452 DAS GUPTA, J.-On August 9, 1955, the Union of the workmen of the  Chandramalai  Estate submitted to the  Manager  of  the Estate a memorandum containing fifteen demands.  Though  the management  agreed  to  fulfil  some  of  the  demands   the principal demands remained unsatisfied.  On August 29, 1955, the  Labour Officer, Trichur, who had in the  meantime  been apprised  of  the  position by both the  management  of  the Estate   as  well  as  the  Labour  Union   advised   mutual negotiations  between the representatives of the  management and  workers.  Ultimately the matter was recommended by  the Labour  Officer  to the Conciliation Officer,  Trichur,  for conciliation.  The Conciliation Officer’s efforts proved  in vain.   The  last meeting for Conciliation appears  to  have been  held on November 30, 1955.  On the following  day  the Union gave a strike notice and the workmen went on a  strike with  effect  from December 9, 1955.  The  strike  ended  on January  5,  1956.   Prior  to  this,  on  January  5,   the Government  had referred the dispute as regards five of  the demands   for  adjudication  to  the  Industrial   Tribunal, Trivandrum.  Thereafter by an order dated June 11, 1956, the dispute  was  withdrawn  from the  Trivandrum  Tribunal  and referred  to  the Industrial Tribunal,  Ernakulam.   By  its award  dated  October  17, 1957, the  Tribunal  granted  the workmen’s  demands on all these issues.  The present  appeal has  been  preferred by the management of  the  Chandramalai Estate  against  the  Tribunal’s award  on  three  of  these issues.   These  three issues are stated  in  the  reference thus: "  1. Was the price realised by the management for the  rice sold  to the workers after decontrol excessive; and  if  so, are  the  workers entitled to get refund  of  the  excessive value so collected? 2.   Are  the workers entitled to get cumbly allowance  with retrospective  effect from the date it was stopped and  what should  be  the rate of such allowance? 3. Are  the  workers entitled to get wages for the period of the strike ? On  the  first issue the workmen’s case was that  after  the control  on  rice  was  lifted  by  the  Travancore   Cochin Government in April, 1954, the management 453 which continued to sell rice to the workmen, charged at  the excessive  rate of 12 annas per measure for rice  bought  in excess  of  a  quota  for  1-1/2  measure  per  head.   This according  to the workmen was improper and  unjustified  and they claimed refund of the excess which they have been  made to pay.  The management’s case was that the workmen were not bound to buy rice from the Estate’s management and secondly, that only the actual cost price and not any excess had  been charged.   The tribunal held on a consideration of oral  and documentary  evidence that the management had  charged  more than the cost price and held that they were bound to  refund the same. The  second  issue  was in respect of  a  claim  for  cumbly allowance.   Chandramalai Tea Estate is situated at  a  high altitude.  It is not disputed that it had been customary for the  Estates  in  this region to pay  blanket  allowance  to

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workmen  to enable them to furnish themselves with  blankets to  meet the rigours of the weather and that it  had  really become  a part of the terms and conditions of service.   But in spite of it the management of this Estate stopped payment of the allowance from 1949 onwards and resumed payment  only in 1954.  The management’s defence was that any dispute  not having been raised about this till August 9, 1955, there was no  reason for raising it at this late stage.  The  Tribunal rejected this contention and awarded cumbly allowance of Rs. 39 per workman-made up of Rs. 7 per year for the years 1949, 1950  and  1951 and Rs. 9 per year for the  years  1952  and 1953. On the third issue while the workmen pleaded that the-strike was  justified the management contended that it was  illegal and  unjustified.  The Tribunal held that both parties  were to  blame for the strike and ordered the management  to  pay workers 50% of their total emoluments for the strike period. On  the  question  of  excess  price  of  rice  having  been collected the appellant’s contention before us is limited to the question of fact, whether the Tribunal was right in  its conclusion  that  more than cost price  was  realised.   The Tribunal  has  based  its conclusion as  regards  the  price realised by the management on entries made in 58 454 the  management’s own documents.  As regards what such  rice cost  the management it held that for the months  of  April, July  and  August and September the price was shown  by  the management’s   documents  while  for  May  and  June   these documents did not disclose the price.  For these two  months the Tribunal held the market price of rice as proved by  the workers’  witness No. 6 to have been the price at which  the Estate’s  management procured their rice.  We are unable  to see anything that would justify us in interfering with these conclusions  of  facts.  Indeed the documents on  which  the Tribunal  has based its conclusions were not even made  part of the Paper-Book so that even if we had wanted to  consider this question ourselves it would be impossible for us to  do so.   We  are satisfied that the Tribunal was right  in  its conclusions as regards the cost price of rice to the manage- ment and the price actually realised by the management  from workmen.   The  management’s  case  that  the  workmen  were charged  only  the  cost  price of  rice  has  rightly  been rejected  by the Tribunal.  The fact that workmen  were  not compelled  to  purchase rice from the management  is  hardly material;  the  management had opened the shop to  help  the workmen and if it is found that it charged excess rates,  in fairness,  the workmen must be reimbursed.  The award in  so far as it directed refund of the excess amount collected  on the  basis  of  the figures found  by  the  Tribunal  cannot therefore be successfully challenged. On  the question of the cumbly allowance it is important  to note  that the only defence raised was that the  demand  had been  made  too late.  The admitted fact that  it  had  been regularly  paid year after year for many years till  it  was stopped  in  1949 is sufficient to establish  the  workmen’s case that payment of a proper cumbly allowance had become  a part  of their conditions of service.  We do not think  that the mere fact that the workmen did not raise any dispute  on the  management’s  refusal to implement  this  condition  of service till August 9, 1955, would be a sufficient reason to refuse   them  such  payment.   The  management  had   acted arbitrarily  and  illegally  in stopping  payment  of  these allowances from 1949 to 1954.  They 455

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cannot now be heard to say that they should not be asked  to pay it merely because the years have already gone by.  It is reasonable to think that even though the management did  not pay  the allowance the workmen had to provide  blankets  for themselves  at  their own expense.  The Tribunal  has  acted justly in directing payment of the allowances to the workmen for  the years 1949 to 1953.  The correctness of  the  rates awarded  by the Tribunal is not challenged before  us.   The Tribunal’s award on this issue also is therefore maintained. This  brings  us to the question whether  the  tribunal  was right in awarding 50% of emoluments to the work. men for the strike  period.  It is clear that on November 30, 1955,  the Union knew that conciliation attempts had failed.  The  next step would be a report by the Conciliation Officer, of  such failure to the Government and it would have been proper  and reasonable  for the Union to address the Government  at  the same time and request that a reference should be made to the Industrial  Tribunal.  The Union however did not  choose  to wait  and  after giving notice on December 1, 1955,  to  the management  that it had decided to strike from  December  9, 1955,  actually  started the strike from that day.   It  has been urged on behalf of the appellant that there was nothing in  the nature of the demands to justify such  hasty  action and  in fairness the Union should have taken the normal  and reasonable  course provided by law by asking the  Government to make a reference under the Industrial Disputes Act before it  decided to strike.  The main demands of the  Union  were about  the  cumbly  allowance and the  price  of  rice.   As regards  the  cumbly allowance they had said  nothing  since 1949  when it was first stopped till the Union raised it  on August  9,  1955.  The grievance for  collection  of  excess price of rice was more recent but even so it was not of such an  urgent  nature that the interests of labour  would  have suffered irreparably if the procedure prescribed by law  for settlement of such disputes through industrial tribunals was resorted  to.   After all it is not the  employer  only  who suffers  if production is stopped by strikes.  While on  the one 456 hand it has to be remembered that strike is a legitimate and sometimes  unavoidable weapon in the hands of labour  it  is equally important to remember that indiscriminate and  hasty use of this weapon should not be encouraged.  It will not be right  for  labour to think that for any kind  of  demand  a strike  can  be commenced with impunity  without  exhausting reasonable   avenues  for  peaceful  achievement  of   their objects.  There may be cases where the demand is of such  an urgent and serious nature that it would not be reasonable to expect  labour to wait till after asking the  Government  to make a reference.  In such cases, strike even before such  a request has been made may well be justified.  The present is not  however one of such cases.  In our opinion the  workmen might  well  have waited for some  time  after  conciliation efforts failed before starting a strike and in the  meantime to  have asked the Government to make the  reference.   They did  not  wait at all.  The conciliation efforts  failed  on November  30, 1955, and on the very next day the Union  made its  decision on strike and sent the notice of the  intended strike from the 9th December, 1955, and on the 9th December, 1955,  the  workmen actually struck  work.   The  Government appear  to  have acted quickly and referred the  dispute  on January  3,  1956.  It was after this that  the  strike  was called  off.   We are unable to see how the strike  in  such circumstances could be held to be justified. The Tribunal itself appears to have been in two minds on the

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question.   Its  conclusion appears to be  that  the  strike though  not  fully justified, was half  justified  and  half unjustified   we find it difficult to appreciate this curious concept   of   half  justification.   In   any   case,   the circumstances  of  the  present  case  do  not  support  the conclusion  that  the strike was justified at all.   We  are bound  to hold in view of the circumstances mentioned  above that  the Tribunal erred in holding that the strike  was  at least partially justified.  The error is so serious that  we are  bound  in  the interests of justice to  set  aside  the decision.   There  is,  in  our view,  no  escape  from  the conclusion  that  the  strike was  unjustified  and  so  the workmen are not entitled to any wages for the strike period.        457        We  therefore  allow the appeal in part and  set  aside  the        award  in  so far as it directed the payment of 50%  of  the        total emoluments for the strike period but maintain the rest        of the award.  There will be no order as to costs.        Appeal allowed.