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1959 Supreme(SC) 181
SUPREME COURT OF INDIA
14th October, 1959.
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR AND K. SUBBA RAO, JJ.
India General Navigation and Railway Co. Ltd. and another, Appellants
Versus
Their Workmen, Respondents.
Civil Appeal No. 86 of 1958.
Advocates appeared
Mr. M. C. Setalvad, Attorney-General for India (M/s. S. N. Mukherjee-and B. N. Ghosh, Advocates, with him), for Appellants; M/s. Niharendu Dutt Mazumdar and Dipak Datta Choudhuri, Advocates, for Respondents.
B.N.GHOSH, DIPAK DATTA CHAUDHURI, M.C.SETALVAD, NIHARENDU D.MAJUMDAR, S.N.MUKHERJEE
An illegal strike under the Industrial Disputes Act cannot be characterized as "justified." Punishment for such strikes must distinguish between peaceful and violent strikers, with the latter generally ineligible for reinstatement due to their defiance of law and order.
Headnote:(A) Industrial Disputes Act, 1947 - Sections 17, 17A, 20, 22, 24, 33 - Constitution of India - Article 136 - Finality of Award - The provisions of the Act regarding the finality of an award and its enforceability are subject to the paramount law of the Constitution. The power of the Supreme Court to grant special leave to appeal under Article 136 cannot be read as subject to the provisions of the Act. (Paras 9-10)
(B) Industrial Disputes Act, 1947 - Section 22 - Illegal Strike - Justification - A strike that is clearly illegal under the statute cannot simultaneously be characterized as "justified". The law makes a distinction between a strike which is illegal and one which is not, but it does not recognize a distinction between an illegal strike which is justifiable and one which is not. Such a distinction is misconceived, especially in the case of employees in a public utility service. (Para 19)
(C) Industrial Disputes Act, 1947 - Section 24(3) - Lock-out - A lock-out declared in response to an illegal strike is not necessarily illegal, although its continuance after a strike is called off may be unjustified. (Para 22)
(D) Punishment for Illegal Strike - Distinction between Peaceful and Violent Strikers - In determining punishment for participating in an illegal strike, a distinction must be made between those who merely participated (peaceful strikers) and those who obstructed loyal workmen, engaged in violence, or acted in defiance of law and order (violent strikers). Violent strikers, particularly those convicted of violating prohibitory orders for maintaining public peace, are not entitled to reinstatement. For peaceful strikers, if the departmental inquiry was irregular (e.g., failure to serve individual charge-sheets), the loss of wages during the strike period may be divided equally between the employer and the employee. (Paras 24, 26)
Facts of the case:
A dispute arose between a company providing inland water transport and its workmen. Following internal union conflicts and failed conciliation proceedings, the workmen went on strike in a public utility service. The company declared a lock-out and dismissed several employees, some of whom were convicted of violating prohibitory orders issued by public authorities. The Industrial Tribunal ordered the reinstatement of most workers, holding that while the strike was illegal, it was "perfectly justified". The company appealed this award.
Findings of Court:
The court held that the strike was illegal and could not be legally characterized as "justified". It found that the dismissal of workers who violated prohibitory orders was proper and their reinstatement should be set aside. For the remaining peaceful strikers, the court upheld reinstatement but modified the award for back wages, reducing them by half because the company's departmental inquiry was irregular and the workmen had likely earned a livelihood through day-to-day labour during the interim period.
Issues: Whether the finality of an award under the Industrial Disputes Act bars an appeal under Article 136 of the Constitution; whether an illegal strike can be considered "justified"; and the appropriate measure of punishment for peaceful versus violent strikers.
Ratio Decidendi: An illegal strike cannot be legally justified. Punishment must be modulated based on the conduct of the striker; violent strikers who defy law and order forfeit the right to reinstatement, while peaceful strikers may be reinstated, with back wages adjusted based on the regularity of the inquiry and the conduct of the parties.
Result: Appeal partly allowed.
SINHA, C.J.I. : This is an appeal by special leave from the Award dated 15-11-1956, made by the Industrial Tribunal, Assam. The dispute arose between the employers, the Indian General Navigation & Railway Company Limited, carrying on business at No. 4, Fairlie Place, Calcutta, and the Rivers Steam Navigation Company Limited, carrying on business at No. 2, Fairlie Place, Calcutta, which will be referred to, in the course of this judgment, as the appellants , and their workmen at Dhubri Ghat, represented by the Dhubri Transhipment Labour Union and Dhubri Local Ghat Transhipment Labour Union, Dhubri, which will be referred to hereinafter as the respondents . The Award aforesaid was published in the Assam Gazette on 19-12-1956.
2. It is necessary to state the following facts in order to appreciate the points arising for decision in this case : The appellants carry on business of inland water transport in North East India and in Pakistan, in association with each other, and are commonly known as the Joint Steamer Companies. The appellants jointly maintain a large number of wharves, jetties, godowns, etc., at different river stations in India and in Pakistan, for the purposes of their business. One such station is at Dhubri in Assam. At that station, a large number of workmen are employed for the purpose of loading and unloading the appellants vessels and for transshipping goods from railway wagons to the appellants vessels and vice versa. Before May, 1954, such workmen were employed by a contractor called the Assam Labour Supply Syndicate which will hereinafter be referred to as the Syndicate . Those workmen were organised under two labour unions, called (1) the Dhubri Transhipment Labour Union which was affiliated to the Indian National Trade Union Congress which is a Federation of Trade Unions, and (2) the Dhubri Local Ghat Transshipment Labour Union. There were differences between the Syndicate and its employees who made certain demands, and had threatened to go on strike to enforce their demands. Conciliation proceedings under the Industrial Disputes Act, 1947 (which will hereinafter be referred to as the Act), took place, in the course of which certain agreements to be referred to in greater detail hereinafter, were reached between the Syndicate and the respondents on 23-2-1953, and 30-3-1953. On 3-5-1954, by virtue of a Memorandum of that date, an agreement was arrived at between the appellants and the respondents, whereby the appellants agreed that instead of employing a contractor to handle the work of loading and unloading and transhipment of goods, the appellants would employ supervisors and agents to handle the work "pending the proposed Tripartite Conference to decide the issue of permanent direct employment of employees for the future". The appellants also agreed to maintain continuity of service of the workmen and the existing terms and conditions of their service. The Tripartite Conference contemplated by the Agreement, was to consist of the representatives of the appellants, the workmen and the Government of Assam. As a result of the Tripartite Conference held on July 9 & 10, 1954, an agreement was reached between the appellants and the Indian National Trade Unions Congress, which was incorporated in the form of a letter dated 16-7-1954, from the General Secretary of the Congress, Assam Branch, Dhubri Ghat, to the several Unions at different stations, including Dhubri. As a result of this agreement, the appellants agreed, inter alia, to introduce permanent direct employment at all the transhipment ghats of Assam, progressively, without prejudicing the agreement of 3-5-1954. It will be necessary hereinafter to consider some of the terms of this agreement in detail, when dealing with the several points in controversy between the parties.
3. After the agreement aforesaid, there arose certain differences amongst the workmen represented by the two Unions aforesaid, in respect of the election of their office-beare
