Judgment

SEN, J. :- This appeal on certificate, from the judgment of the Madras High Court raises a question of some complexity. The question is, whether an employer is statutorily bound to pay wages if the workmen are on strike, for an of the national or festival holidays falling within the period of strike, under S. 3 read with sub-s. (1) of S. 5 of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Act, 1958 (hereinafter referred to as the Act).

2. The facts of the case are not in dispute. Messrs Madura Coats Limited are an industrial establishment within the meaning of S. 2 (e) of the Act, owning textile mills at Madurai, Ambasamudram and Tuticorin in the State of Tamil Nadu. The cotton textile industry had been declared to be a public utility service for purposes of the Industrial Disputes Act, 1947. In respect of claim for bonus for the year 1974-75 a settlement was entered into which stood superseded by the Payment of Bonus Ordinance, 1975. The management accordingly took the view that no bonus was payable for the year in question, since its payment would be against the provisions of the Act, as amended by the Ordinance. This resulted in a strike by the workmen of the concerned mills. The workmen were on strike from January 21, 1976 to February 5, 1976. The strike was called off by the workmen on February 6, 1976 due to the intervention of the Commissioner of Labour, Madras, who brought about a settlement. The proceedings of the Commissioner of Labour dated February 5, 1976 show that the parties, i. e., the management and the workmen, had agreed to abide by his decision in the matter. The terms of the settlement were, inter alia, that the strike was to be called off forthwith and the workmen would commence work on February 6, 1976, that the managements proposal to make a penal cut of eight days wages of the workmen for going on an illegal strike would be waived and that there would be no wages payable for the period of the strike. In accordance therewith, the workmen resumed work on February 6, 1976 and the management paid them wages for the month of January, 1976 after excluding therefrom the wages payable for the period of strike during January, namely, for the period from January 21 to 31, 1976. The management having withheld the wages payable for January 26, 1976, the Inspector of Factories, Ist Circle, Madurai addressed a communication dated May 22, 1976 stating that in view of S. 5 of the Act, payment of wages for January 26, 1976 had to be made. The management challenged the order by a writ petition but the High Court declined to interfere. It held that the appellant was bound to pay to the workmen wages for January 26, 1976, having regard to the provisions contained in S. 3 and sub-s. (1) of S. 5 of the Act, even though the workmen were on strike on that day. The correctness of that decision is in question.

3. It is urged firstly that in view of the term wages in S. 2 (g) of the Act, no wages were payable to the workmen for January 26, 1976, in terms of the contract of employment since they were not available for work and thereby the management were deprived of the right given to them under sub-s. (2) of S. 5 of the Act, to call upon the workmen to come and do the work; and secondly, the right of the workmen to receive wages for the national or festival holidays under S. 3 of the Act, is subject to the right of the management under sub-s. (2) S. 5 to call upon them to come and work on such holidays. It is said that when a person creates a situation by going on a strike whereby he is not available for work, the terms of employment cannot be fulfilled and, therefore, a fortiori no wages are payable. It is suggested that the right of the workmen to wages is not dependent on their status as such, but on the fulfilment of the contract of employment.

4. It would be convenient in the first instance to set out the relevant provisions of the Act. In the Act the term wages as defined in S. 2 (g), insofa