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2005 Supreme(Kar) 480
Karnataka High Court
Judges : N.KUMAR
MANAGEMENT OF ORIENTAL TRANSPORT LTD., - Appellant
Versus
B.T.RAMAKRISHNA - Respondent
W. P. 5358 Of 2000
Decided On : 08/10/2005
Headnote:COLLECTIVE BARGAINING - Strike - Strike -Is part of collective bargaining. [N. Kumar, J]: Strike means a cessation of work, refusal to work or accept employment. It is a legal weapon in the hands of the workers and the union to force the management to accept their just demands. A right to strike is part of collective bargaining which is recognized in law. Unless the strike is commenced or declared in contravention of Section 22 or 23 or is continued in contravention of Section 10(3) of 10A (4A) of the Industrial Disputes Act it cannot be termed illegal.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591
Dismissal
LABOUR AND SERVICES - Dismissal -Legality -Strike by employees -Legality referred to Tribunal -Employees dismissed for acts during strike -Approval sought -Effect of dismissal.
[N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action.
Strike
INDUSTRIAL DISPUTES ACT, 1947
Section 22 -Strike -Legality -Resolution of.
[N. Kumar, J]: When a question arises whether the strike is legal or illegal, even that dispute has to be resolved by industrial adjudication, by getting the matter referred to a tribunal or Labour Court. The strike ought to be peaceful. There is no scope for violence, workman cannot take law into their own hands. Strikers must obey the civilized norms in the battle; not use vulgar language; indulge in violent acts, and acts which are subversive of the discipline of the company. They cannot indulge in abusing the officials with vulgar words and threaten them with bodily injury. All these acts are not part of strike, nor they are connected with the strike. In law there is a distinction between persons who participate in a strike out of compulsion as dumb-driven cattle and those while participating in such strike, take an active part in fomenting trouble and indulge in violence. Fomenting trouble and indulging violent acts are not matters connected with a strike, whether the strike is legal or illegal.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
Strike
INDUSTRIAL DISPUTES ACT, 1947
Section 23 -Strike -Legality -Resolution of. See, Section 22.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
Conditions of service
INDUSTRIAL DISPUTES ACT, 1947
Section 33 -Conditions of service -Alteration of -Bar under.
[N. Kumar, J]: Section 33 bars alterations in the conditions of service, prejudicial to the workman concerned in the dispute. Sub-clause (1) requires the employer to take express permission in writing of the authority before which the proceeding is pending before altering the conditions of service of the workman to his prejudice in regard to any matter connected with the dispute or for discharging or punishing him by dismissed or otherwise for any misconduct connected with the dispute. But under sub-section (2) the employer may alter the conditions of service of the workman concerned in the pending dispute in regard to any matter not connected with the dispute. However, for discharging or punishing such workman for any misconduct not connected with the pending dispute, the employer has to comply with the provisions of the proviso to sub-Section (2) and then obtain approval of the authority. Thus the ban of sub-Sections(l) and (2) is only in regard to action proposed to be taken or already taken for an act of misconduct whether connected or unconnected with the dispute. When once legality of the strike is referred to an Industrial Tribunal for adjudication, the management cannot take any disciplinary action against such workers who participated in the said strike. Even if they take any action without prior permission of the Industrial Tribunal, no punishment could be imposed on these workmen so as to alter the service conditions. That is the protection law has given to the workers. But if the acts complained of are unconnected with the dispute pending before the Tribunal for adjudication, no such prior permission is necessary. Even then law has taken care to protect their interest, by insisting, if action is to be taken it ought to be approved by the Industrial Tribunal. However the other allegations of misconduct against these four workmen, namely, abusing the officials by using vulgar words, threatening bodily injury, stopping workers from attending to duty, shouting at officials, do not fall within the phrase "any matter connected with the dispute". Labour Court has wrongly held that the aforesaid misconduct alleged against these workmen is a matter connected with the dispute and has rejected the applications at the threshold itself. It is contrary to law and settled legal position set out above. In that view of the matter the impugned order passed by the Labour Court cannot be sustained. Therefore, the entire matter has to be remitted back to the Industrial Tribunal to consider the applications filed by the petitioners under Section 33(2)(b) and dispose of the same in accordance with law after hearing both parties, without in any way being influenced by any of the observations in this order.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
Industrial dispute
INDUSTRIAL DISPUTES ACT, 1947
Section 33 -Industrial dispute -Matters connected and not connected with -Distinction.
[N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 33(1)
Legality of dismissal
INDUSTRIAL DISPUTES ACT, 1947
Section 33 -Legality of dismissal -Strike by employees -Legality referred to Tribunal -Employees dismissed for acts during strike -Approval sought -Effect of dismissal.
[N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
LABOUR AND SERVICES - Dismissal - Dismissal -Legality -Strike by employees -Legality referred to Tribunal -Employees dismissed for acts during strike -Approval sought -Effect of dismissal. [N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
Strike
COLLECTIVE BARGAINING - Strike -Is part of collective bargaining.
[N. Kumar, J]: Strike means a cessation of work, refusal to work or accept employment. It is a legal weapon in the hands of the workers and the union to force the management to accept their just demands. A right to strike is part of collective bargaining which is recognized in law. Unless the strike is commenced or declared in contravention of Section 22 or 23 or is continued in contravention of Section 10(3) of 10A (4A) of the Industrial Disputes Act it cannot be termed illegal.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
words and phrases - Strike - Strike -Strike means a cessation of work, refusal to work or accept employment. It is a legal weapon in the hands of the workers and the union to force the management to accept their just demands. A right to strike is part of collective bargaining which is recognized in law. Unless the strike is commenced or declared in contravention of Section 22 or 23 or is continued in contravention of Section 10(3) of 10A( 4A) of the Industrial Disputes Act it cannot be termed illegal.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
INDUSTRIAL DISPUTES ACT, 1947 - Industrial dispute - Section 33 -Industrial dispute -Matters connected and not connected with -Distinction. [N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 33( 1).
INDUSTRIAL DISPUTES ACT, 1947 - Legality of dismissal - Section 33 -Legality of dismissal -Strike by employees -Legality referred to Tribunal -Employees dismissed for acts during strike -Approval sought -Effect of dismissal. [N. Kumar, J]: There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action.
Cases Referred: 1980 (1) LLJ 137; 1989 (2) LLJ 591.
INDUSTRIAL DISPUTES ACT, 1947 - Section 23 - Strike - Section 23 -Strike -Legality -Resolution of. See, Section 22.
INDUSTRIAL DISPUTES ACT, 1947 - Section 33 - Conditions of service - Section 33 -Conditions of service -Alteration of -Bar under. [N. Kumar, J]: Section 33 bars alterations in the conditions of service, prejudicial to the workman concerned in the dispute. Sub-clause (1) requires the employer to take express permission in writing of the authority before which the proceeding is pending before altering the conditions of service of the workman to his prejudice in regard to any matter connected with the dispute or for discharging or punishing him by dismissed or otherwise for any misconduct connected with the dispute. But under sub-section (2) the employer may alter the conditions of service of the workman concerned in the pending dispute in regard to any matter not connected with the dispute. However, for discharging or punishing such workman for any misconduct not connected with the pending dispute, the employer has to comply with the provisions of the proviso to sub-Section (2) and then obtain approval of the authority. Thus the ban of sub-Sections(l) and (2) is only in regard to action proposed to be taken or already taken for an act of misconduct whether connected or unconnected with the dispute. When once legality of the strike is referred to an Industrial Tribunal for adjudication, the management cannot take any disciplinary action against such workers who participated in the said strike. Even if they take any action without prior permission of the Industrial Tribunal, no punishment could be imposed on these workmen so as to alter the service conditions. That is the protection law has given to the workers. But if the acts complained of are unconnected with the dispute pending before the Tribunal for adjudication, no such prior permission is necessary. Even then law has taken care to protect their interest, by insisting, if action is to be taken it ought to be approved by the Industrial Tribunal. However the other allegations of misconduct against these four workmen, namely, abusing the officials by using vulgar words, threatening bodily injury, stopping workers from attending to duty, shouting at officials, do not fall within the phrase "any matter connected with the dispute". Labour Court has wrongly held that the aforesaid misconduct alleged against these workmen is a matter connected with the dispute and has rejected the applications at the threshold itself. It is contrary to law and settled legal position set out above. In that view of the matter the impugned order passed by the Labour Court cannot be sustained. Therefore, the entire matter has to be remitted back to the Industrial Tribunal to consider the applications filed by the petitioners under Section 33(2)(b) and dispose of the same in accordance with law after hearing both parties, without in any way being influenced by any of the observations in this order.
Strike
WORDS AND PHRASES - Strike -Strike means a cessation of work, refusal to work or accept employment. It is a legal weapon in the hands of the workers and the union to force the management to accept their just demands. A right to strike is part of collective bargaining which is recognized in law. Unless the strike is commenced or declared in contravention of Section 22 or 23 or is continued in contravention of Section 10(3) of 10A( 4A) of the Industrial Disputes Act it cannot be termed illegal.
( 2 ) RESPONDENTS in all these writ petitions are workmen employed by the petitioner/ industrial establishment. The workers of the petitioner went on strike on November 19,. 1998. At the intervention of the authorities, a dispute regarding validity of strike was referred to Industrial Tribunal for adjudication in i. D. No. 97/99. Accusing these respondents of having committed certain acts during the period of strike, they were served with charge sheet. Respondents gave a reply denying the charges. Not being satisfied with the said reply, departmental enquiry was initiated against these four workmen. Both parties adduced evidence. On consideration of the material on record, the enquiry officer held that the misconduct alleged against these respondents is proved and submitted a report to the disciplinary authority. After going through the report, disciplinary authority found one of the charges levelled against these workmen is in respect of going on strike, which was the subject matter of industrial dispute in I. D. No. 97/99. Therefore in the second show cause notice issued to these four workmen enclosing copy of the report of the enquiry officer, they called upon the workmen to have their say against the finding except with regard to the charge/misconduct falling under Standing order Clause 18. 1 (8 ). These workmen gave their reply. The disciplinary authority on consideration of the report of the enquiry officer, the representation made by the workmen and other materials on record, passed an order of dismissal in respect of the four workmen by separate orders. In the said order of dismissal it was made clear that they have not taken into account the material pertaining to charge regarding strike i. e. , Clause 18. 1 (8 ).
( 3 ) AS the industrial dispute was pending before the Industrial Tribunal, they made an application under Section 33 (2) (b) of the industrial Disputes Act, 1947 (for short hereinafter referred as 'the Act' seeking for approval of the action taken by them, in the said application also, petitioner made it clear, that the order of dismissal is not passed in respect of misconduct under Clause 18. 1 (8) and the order of dismissal is passed only in respect of other misconduct which is unconnected with the dispute pending 'before the Tribunal. The said application was opposed by these workmen. They contended that thedomestic enquiry conducted is not fair and proper, the order of dismissal passed without express permission of the Tribunal is hit by Section 33 (1) (b) as it is connected with the dispute pending before the Tribunal. On merits also they contended that the materials on record do not establish the misconduct alleged against them.
( 4 ) THE workmen requested the Tribunal to decide the question of maintainability of this application as preliminary point. Accordingly the Labour Court framed a preliminary point, heard the parties on the said point. On consideration of the rival contentions, it held, that the misconduct alleged against these workmen is directly connected with the dispute which is pending before the Tribunal for adjudication and the case falls under Section 33 (1 ) (b) and not under Section 33 (2) (b ). Therefore, the Tribunal rejected all the four applications filed, by separate orders, but with the same reasoning. Aggrieved by these orders the petitioner has preferred these writ petitions.
( 5 ) LEARNED senior counsel Sri Kasturi, appearing for the petitioner contends, that the subject matter of the industrial dispute pending before the Tribunal is "whether the workmen, are justified in going on strike with effect from november 19, 1998. " The charges levelled against these workmen are not matters connected with the pending dispute. It is outside the scope of the said dispute and therefore there
