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IN THE HIGH COURT OF BOMBAY
P.B. Sawant V.V. Vaze, JJ.
Maharashtra General Kamgar Union others .... Petitioner.
Versus
Balkrishna Pen Private Limited another .... Respondents.
Writ Petition No. 1255 of 1982, decided on 10-9-1987.
Advocates appeared :
S.J. Deshmukh with German Fernandes, for petitioners.
F.D. Damania with S.K. Talsania, for respondent No. 1.
To discharge its duty to deal with such complaint, the Industrial Court will have necessarily to decide whether the strike is deemed to be illegal under the Act. In order to come to that decision, the Court must first come to the conclusion whether the strike is legal or illegal, and if it holds that it is illegal, it has thereafter to decide whether it is deemed to be illegal under the Act. Unless the Court assumes jurisdiction to decide the said question, the provisions of Sections 5 and 30 read with the said item would be rendered nugatory a consequence which is not warranted by any rules of interpretation of statutes. Hence, it will have to be held that notwithstanding the provisions of Section 25, the Industrial Court also has the jurisdiction to decide whether the strike is deemed to be illegal under the Act. Since the Industrial Court cannot decide it unless it follows the procedure laid down under sub-sections (2), (3) and (5) of Section 25, it will have to be held that the said procedure will apply mutatis mutandis to the Industrial Court while dealing with such complaints under Section 30 of the Act.
The Industrial Court will therefore have first to decide whether the strike is legal or illegal and if it comes to the conclusion that it is illegal make a declaration of the said fact in the open Court. The Court will have then to give 48 hours for withdrawal of the strike. In case it is not withdrawn during that period it will have to proceed to decide whether it is deemed to be illegal under the Act. What applies to strikes will equally apply to lock-outs. The Industrial Court assumes this power as incidental to its power to investigate the complaint under Section 30 of the Act. The said power is implicit in it and should he read and deemed to have been vested in the Court under Section 30 read with Section 5(d) and item I of Schedule III and item 6 of Schedule II.
That this is the avowed intention of the legislature is further evidenced by the provisions of Section 32 of the Act, which have been reproduced above. The language of this section is crystal clear, and no further and other argument is necessary to vest the Industrial Court with the said incidental power. What is latent is made explicit by the aforesaid provision. The section begins with the non obstante clause and thus first negates the argument of the so called exclusive jurisdiction of the Courts and proceeds to vest in them the power to decide all matters arising out of any application or complaints referred to it for decision under any of the provisions of the Act.
Section 24 (i)-Illegal strike-Whether strike was illegal because it bad commenced 11 hours before the expiration of the strike notice fourteen days - Held-Illegality should attach only to the period which remarried to expire before commencement of the action -Admittedly in instant case strike had commenced 11 hours before expiry of strike notice-Strike illegal only for the said period of 11 hours-Strike would be legal for the rest of its duration.
Section 25-Strike or lock out-Procedure to be followed in such case.
If there is an application for interim relief the Court will have to dispose it of on the basis of its prima facie view of the matter. The second stage will be the stage when the Court records its finding whether the strike or the lock-out is legal or illegal. If it comes to the conclusion that it is legal, it will proceed to dispose of the complaints forthwith, accordingly. However where the conclusion is that it is illegal, it should make the declaration in the open Court as required by sub-section (3) of Section 25 and give 48 hours time to the party concerned to withdraw it as required by Section (5) of the said section, it is only if the strike or the lock-out is not withdrawn during the said period, that it should proceed to decide whether it is "deemed to be illegal under the Act" as required by item I of Schedule III and item 6 of Schedule 11 as the case may be. The last stage is the stage where the Court proceeds to line out whether, in the strike, there was advice, active support or instigation and by whom, and in the case of lock-out whether it was proposed or continued. If this procedure is followed, there should ordinarily be no difficulty in trying the complaints.
Section 30 - Complaint Under - Procedure to be followed by court.
The procedure which the Courts should follow in such cases under Section 30 of the Act is outlined by the court as follows:
If there is an application for interim relief the Court will have to dispose it of on the basis of its prima facie view of the matter. The second stage will be the stage when the Court records its finding whether the strike or the lockout is legal or illegal. If it comes to the conclusion that it is legal it will proceed to dispose of the complaints forthwith accordingly. However where the conclusion is that it is illegal it should make the declaration in the open Court as required by sub-section (3) of Section 25 and give 48 hours time to the party concerned to withdraw it as required by sub-section (5) of the said section. It is only if the strike or the lock out is not withdrawn during the said period, that it should proceed to decide whether it is "deemed to be illegal under the Act" as required by item 1 of Schedule III and item 6 of Schedule II as the case may be. The last stage is the stage where the Court proceeds to find out whether in the case of strike, there was advice, active support or instigation and by whom, and in the case of lock out, whether it was proposed or continued. If this procedure is followed, there should ordinarily be no difficulty in trying the complaints.
Sections 30, 5, 25, 32, Schedule III, Item 1-Industrial Court-Jurisdiction of –It can decide whether strike deemed to be illegal under the Act notwithstanding provisions of Sections 25.
To answer the issue whether the Industrial Court while trying an application under Section 30 of the Act has jurisdiction to record its findings on whether the strike (and for that matter lock-out) is deemed to be illegal under the Act, it is not necessary either to resort to semantics or thetorics. The provisions of the Act are clear on the point. Section 5, as pointed out earlier deals with the duties of the Industrial Court. Sub-clause (d) thereof enumerates one such duty.
Item I of Schedule IV relates to unfair labour practices on the part of employers in discharging or dismissing employees, and the Labour Court is given the power under Section 7 of the Act to decide complaints relating to the said practice and hence it is excluded from the purview of the Industrial Court. The Act thus casts a duty on the Industrial Court to decide complaints with regard to all other unfair labour practices including the one described in item 1 of Schedule III.
To discharge its duty to deal with such complaint, the Industrial Court will have necessarily to decide whether the strike is deemed to be illegal under the Act. In order to come to that decision, the Court must first come to the conclusion whether the strike is legal or illegal, and if it holds that it is illegal,
it has thereafter to decide whether it is deemed to be illegal under the Act. Unless the Court assumes jurisdiction to decide the said question, the provisions of Sections 5 and 30 read with the said item would be rendered nugatory a consequence which is not warranted by any rules of interpretation of statutes. Hence, it will have to be held that notwithstanding the provisions of Section 25, the Industrial Court also has the jurisdiction to decide whether the strike is deemed to be illegal under the Act. Since the Industrial Court cannot decide it unless it follows the procedure laid down under sub-sections (2), (3) and (5) of Section 25, it will have to be held that the said procedure will apply mutatis mutandis to the Industrial Court while dealing with such complaints under Section 30 of the Act. The Industrial Court will therefore, have first to decide whether the strike is legal or illegal and if it comes to the conclusion that it is illegal, make a declaration of the said fact in the open Court. The Court will have then to give 48 hours for withdrawal of the strike. In case it is not withdrawn during that period, it will have to proceed to decide whether it is deemed to be illegal under the Act. What applies to strikes will equally apply to lock-outs. The Industrial Court assumes this power as incidental to its power to investigate the complaint under Section 30 of the Act. The said power is implicit in it and should be read and deemed to have been vested in the Court under Section 30 read with Section 5 (d) and item 1 of Schedule III and item 6 of Schedule II.
That this is the avowed intention of the legislature is further evidenced by the provisions of Section 32 of the Act, which have been reproduced above. The language of this section is crystal clear and no further and other argument is necessary to vest the Industrial Court with the said incidental power. What is latent is made explicit by the aforesaid provision. The section begins with the non obstinate clause and thus first negates the argument of the so-called exclusive jurisdiction of the Courts and proceeds to vest in them the power to decide all matters arising out of any application or complaints referred to it for decision under any of the provisions of the Act.
2. Mr. Damania, learned Counsel appearing for the employer, stated that without prejudice to the employer's contention that the respondents were guilty of the unfair labour practices as held by the Industrial Court, and that the injunctions granted against them were also proper, the employer does not want to press the findings, declarations and injunctions given by the Court so far as the unfair labour practices mentioned in items 2, 5 and 6 of the Schedule are concerned, it view of the fact that there has since been a change in the representation of the workmen, and a new union, which is not a party to these proceedings, had come on the scene. In view of this, we set aside the findings, declarations and injunctions given by the Labour Court pertaining to item 2, 5 and 6 of the Schedule against all the respondent. The only question, therefore, that survives for our consideration is whether there was an illegal strike, as was complained of the employer, within the meaning of item 1 of the said Schedule. Even with regard to this item, Mr. Damania states that it is not necessary to record a finding against any of the respondents as such. It will be enough if this Court pronouces its finding on the factum of the illegal strike within the meaning of the said item, since the question of the interpretation of the item has assumed considerable importance and is at present vexing the Courts below. Hence we do not propose to go into the finding of fact recorded by the Court against the respondents or any one of them. In fact that stage will arrive only if we first come to the conclusion that there was a strike deemed to be illegal under the Act.
3. The question whether the strike was illegal as contemplated by the said item raisee in its turn three questions, namely :
(1) Was the strike "deemed to be illegal under the Act" as required by the said item ;
(2) Had the strike commenced before the expiry of 14 days from the date of receipt of the strike notice, and
(3) Was the strike in respect of demands covered by the subsisting settlement?
The first is a question of law an d the other two are questions of fact. The first question revolves round the meaning of the expression "deemed to be illegal under the Act" used in the said item, and the question whether the Industrial Court, while exercising its jurisdiction under section 30 can decide the question of the deemed illegality of the strike under the Act before there is such a declaration by the Labour Court under section 25 of the Act. Since as stated earlier this question has been agitating the industrial world particularly because of the conflicting decisions of this Court, it has become necessary for us to go into it a little exhaustively and to scrutinise the various provisions of the Act which is undoubtedly a badly drafted piece of legislation. The authorities cited before us also show that the learned judges have tired to reconcile the conflicting provisions of the Act to find a way out in the cases which fell for decision before them.
4. As is evident from its preamble, the Act has been placed on the statute book---
(i) to provide for the recognition of Trade Unions for facilitating collective bargaining and to state their rights and
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