Judgement

Mahajan J. - This is an appeal by special leave from a decision dated 27th June 1951 of the Labour Appellate Tribunal of India at Calcutta in appeals Nos. 94 and 138 of 1960, arising out of the award of the Second Industrial Tribunal, Madras.

2. The relevant facts and circumstances giving rise to the appeal are as follows. On 1st November 1948, 859 night shift operatives of the carding and spinning department of the Carnatic Mills stopped work, some at 4 P. M., some at 4-30 P. M. and some at 5 P. M. The stoppage ended at 8 P. M. in both the departments. By 10 P. M. the strike ended completely. The apparent cause for the strike was that the management of the Mills had expressed its inability to comply with the request of the workers to declare the forenoon of 1st November 1948 as a holiday for solar eclipse. On 3rd November 1948, the management put up a notice that the stoppage of work on 1st November amounted to an illegal strike and a break in service within the meaning of the Factories Act (25 of 1934) and that the management had decided that the workers who had participated in the said strike would not be entitled to holidays with pay as provided by the Act. This position was not accepted by the Madras Labour. Union. The Madras Government by an order dated 11th July 1949 made under S. 10 (1) (c), Industrial Disputes Act (14 of 1947), referred this dispute along with certain other disputes to the Industrial Tribunal Madras.

The adjudicator gave the award which was published in the Gezette on 12th October 1950. By his award the adjudicator found that there could be little doubt that the stoppage of work by the night shift workers on the night of 1st November 1948 was a strike, that it was an illegal strike since the textile industry is notified a public utility industry and there could be no legal strike without a proper issue of notice in the terms prescribed by the Industrial Disputes Act. No such notice had been given. In view of this finding he upheld the view of the management that the continuity of service of the workers was broken by the interruption caused by the illegal strike and that as a consequence the workers who participated in such strike were rot entitled to annual holidays with pay under s. 49B (1), Factories Act. He, however, considered that the total deprivation of leave with pay ordered by the management was a severe punishment and on the assumption that he had power to scrutinize the exercise of the discretion by the management in awarding punishment reduced the punishment by 50 per cent, and held that the workers would be deprived of only half their holidays with pay. The decision of the management was varied to this extent.

3. The Mills as well as the Union appealed aganist this decision to the Labour Appellate Tribunal. That Tribunal upheld the contention of the Mills that the adjudicator had no power to interfere with and revise the discretion of the management exercised by it under s. 49B (1). It also upheld the contention of the Union that what happened on the night of 1st November did not amount to a strike and did non cause any interruption in the workers service. This is what the Tribunal said :

"It would be absurd to hold that non-permitted absence from work even for half an hour or less in the course of a working day would be regarded as interruption of service of a workman for the purpose of the said section. We are inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the case is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned."

In the result the appeal of the Union on this point was allowed and it was ordered that holidays at full rates as provided for in s. 49A, Factories Act, will have to be calculated in respect of the operatives concerned on the footing that there was no break in the contnuity of their service by the stoppage of work on 1st November 1948.

4. In this a