# SYNDICATE BANK AND ANR. ETC. ETC v. SH. K. UMESH NAYAK. ETC. ETC

- **Citation:** [1994] Supp. 3 S.C.R. 491
- **Court:** Supreme Court of India
- **Decided:** 1994-09-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syndicate-bank-and-anr-etc-etc-v-sh-k-umesh-nayak-etc-etc-12488
- **Pages:** 22

## Headnote

SYNDICATE BANK AND ANR. ETC. ETC.
v.
SH. K. UMESH NAYAK. ETC. ETC.
SEPTEMBER 13, 1994
KULDIP SINGH, P.B. SAWANT, S. MOHAN, G.N. RAY
AND N.P. SINGH, JJ.]
A
B
Labour Law--lndustrial Disputes Act, 1947, Ss. 22, 23 and 24Worker's entitlement to wages during strike period-Held, a/finning the view
in T.S. Kelavala's case, to be entitled to wages for the strike-period, strike has C
to be both legal and justified.
Labour Law--lndustrial Disputes Act 1947, Ss. 22, 23 and 24-High
Court in writ jurisdiction holding strike to be legal and justified-Held, these
were issued to be decided by the industrial adjudicator under the Act and the D
High Court exceeded its jurisdiction-Constitution of India, Article 226.
In the Appeal by the State Bank of India the facts were that there
were three settlements entered into in June, 1989 ·between the Appellant
and the Respondnet staff union under which the employees were entitled E
to certain advantages over and above those under an earlier All India
Bipartite Settlement. The Appellant did not immediately implement the
settlementS stating that Government's approval was required. The stand
of the Respondent union was that the settlements were signed without any
such pre-condition and should be implemented forthwith. They gave notice
on September 1, 1989 that they would strike work on three different days F
beginning September 18. In the conciliation proceedings that ensued the
employees maintained that there was no dispute as such and that the only
issue was of implementation of the settlements. The proceedings remaining
inconclusive were adjourned to October 6, 1989.
On October 1, 1989 the Respondent.gave a further notice of a strike G
on October 16. The Appellant on October 12, 1989 issued a circular stating
that it would deduct the salary for the days the employees would be on
strike. The conciliation officer meanwhile adjourned the proceedings to
October 17. The employees went on strike on October 16, 1989 and chal·
lenged the Appellant's circular in a writ petition in the High Court.
H
491
A
B
c
492
SUPREME COURT REPORTS [1994] SUPP.. 3 S.C.R.
Relying on the decision of this court in Bank of India v. T.S. Kelavala,
(1990) 4 sec 744 which held that full day's wages could be deducted even
if the strike were legal and only for a part of the day, the Single Judge of
the High Court upheld the Appellant's circular and dismissed the writ
petition. The Division Bench allowed the Respondent union's appeal holding that there was no industrial dispute for which conciliation proceedings
could be held. Accordingly, the strike was not illegal and in the circumstances was also justified. There could be no deduction of wages for the strike
period as held by this court in Management of Churakulam Tea Estate (P)
Ltd. v. The Workmen and Anr., (1969) 1 SCR 931 and Crompton Greaves
Ltd. v. Its Workmen, (1978] 3 SCC 155.
In the appeals by Syndicate Bank and Canara Bank, the only issue
was whether when the employees struck work only for some hours of the
day, their salary for the whole day could be deducted.
On an apparent conflict of opinions expressed in the ,decisions in
D Churakulam Tea Estate and Crompton Greaves on the one hand and
T.S.Kelavala on the other, the Appeals were referred to a Constitution
Bench.
Allowing the appeals, this Court
E
HELD : 1. To be entitled to the wages for the strike-period, the strike
has to be both legal and justified. There is nothing in the decisions in
Churakulam Tea Estate and Crompton Greaves .cases which is contrary to
the view taken in T.S. Kelavala. [507-H, 508-A]
F
Management of Churakulam Tea Estate (P) Ltd. v. The Workmen &
Anr., (1969] 1 SCR 931 and Crompton Greaves Ltd. v. Its Workmen, (1978]
3 sec 155, explained.
G
H
Bank of India v. T.S. Kelavala, (1990] 4 SCC 744, affirmed and
explained.
Management of Chandramalai Estate, Emakulam v. Its workmen &
Anr., [1960] 3 SCR 451; Management of Karibetta Estate, Kotagiri, v.
Rajamanickam and Others, (1960] 3 SCR 371 and India Ge

## Text

_Characters 0–39,818 of 56,490. This is a partial read: ask again with offset=39818 for what follows._

SYNDICATE BANK AND ANR. ETC. ETC.
v.
SH. K. UMESH NAYAK. ETC. ETC.
SEPTEMBER 13, 1994
KULDIP SINGH, P.B. SAWANT, S. MOHAN, G.N. RAY
AND N.P. SINGH, JJ.]
A
B
Labour Law--lndustrial Disputes Act, 1947, Ss. 22, 23 and 24Worker's entitlement to wages during strike period-Held, a/finning the view
in T.S. Kelavala's case, to be entitled to wages for the strike-period, strike has C
to be both legal and justified.
Labour Law--lndustrial Disputes Act 1947, Ss. 22, 23 and 24-High
Court in writ jurisdiction holding strike to be legal and justified-Held, these
were issued to be decided by the industrial adjudicator under the Act and the D
High Court exceeded its jurisdiction-Constitution of India, Article 226.
In the Appeal by the State Bank of India the facts were that there
were three settlements entered into in June, 1989 ·between the Appellant
and the Respondnet staff union under which the employees were entitled E
to certain advantages over and above those under an earlier All India
Bipartite Settlement. The Appellant did not immediately implement the
settlementS stating that Government's approval was required. The stand
of the Respondent union was that the settlements were signed without any
such pre-condition and should be implemented forthwith. They gave notice
on September 1, 1989 that they would strike work on three different days F
beginning September 18. In the conciliation proceedings that ensued the
employees maintained that there was no dispute as such and that the only
issue was of implementation of the settlements. The proceedings remaining
inconclusive were adjourned to October 6, 1989.
On October 1, 1989 the Respondent.gave a further notice of a strike G
on October 16. The Appellant on October 12, 1989 issued a circular stating
that it would deduct the salary for the days the employees would be on
strike. The conciliation officer meanwhile adjourned the proceedings to
October 17. The employees went on strike on October 16, 1989 and chal·
lenged the Appellant's circular in a writ petition in the High Court.
H
491
A
B
c
492
SUPREME COURT REPORTS [1994] SUPP.. 3 S.C.R.
Relying on the decision of this court in Bank of India v. T.S. Kelavala,
(1990) 4 sec 744 which held that full day's wages could be deducted even
if the strike were legal and only for a part of the day, the Single Judge of
the High Court upheld the Appellant's circular and dismissed the writ
petition. The Division Bench allowed the Respondent union's appeal holding that there was no industrial dispute for which conciliation proceedings
could be held. Accordingly, the strike was not illegal and in the circumstances was also justified. There could be no deduction of wages for the strike
period as held by this court in Management of Churakulam Tea Estate (P)
Ltd. v. The Workmen and Anr., (1969) 1 SCR 931 and Crompton Greaves
Ltd. v. Its Workmen, (1978] 3 SCC 155.
In the appeals by Syndicate Bank and Canara Bank, the only issue
was whether when the employees struck work only for some hours of the
day, their salary for the whole day could be deducted.
On an apparent conflict of opinions expressed in the ,decisions in
D Churakulam Tea Estate and Crompton Greaves on the one hand and
T.S.Kelavala on the other, the Appeals were referred to a Constitution
Bench.
Allowing the appeals, this Court
E
HELD : 1. To be entitled to the wages for the strike-period, the strike
has to be both legal and justified. There is nothing in the decisions in
Churakulam Tea Estate and Crompton Greaves .cases which is contrary to
the view taken in T.S. Kelavala. [507-H, 508-A]
F
Management of Churakulam Tea Estate (P) Ltd. v. The Workmen &
Anr., (1969] 1 SCR 931 and Crompton Greaves Ltd. v. Its Workmen, (1978]
3 sec 155, explained.
G
H
Bank of India v. T.S. Kelavala, (1990] 4 SCC 744, affirmed and
explained.
Management of Chandramalai Estate, Emakulam v. Its workmen &
Anr., [1960] 3 SCR 451; Management of Karibetta Estate, Kotagiri, v.
Rajamanickam and Others, (1960] 3 SCR 371 and India General Navigation
and Railway Co. Ltd. v. Their Workmen, [1960] 2 SCR 1, referred to.
2. Whether the strike was legal or illegal and justified or unjustified,
SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.]
493
were issues which fell for decision within the exclusive domain of the A
industrial adjudicator under the Act. The High Court erred in recording
its findings on the legality and justifiability. An enquiry into these issues
is essentially an enquiry into the facts which may require the taking of oral
and documentary evidence. (508-G, 509-F, 512-C]
3. The law laid down in T.S. Kelavala will apply in the appeals by B
Syndicate Bank and Canara Bank and wages of the employees for the
whole day would be deducted. (512-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2689 of
'
1989 etc. etc.
From the Judgment and Order dated 26.9.88 of the Madras High
Court in W.A. No. 26 of 1981.
Ms. Madhu Moolchandani for the Appellants.
c
Vijay Kumar Verma, Harinder Mohan Singh, S.R. Bhat, A.V. RanD
gam and Ambrish Kumar for the Respondents.
The Judgment of the Court was delivered by
SAWANT, J. These appeals have been referred to the Constitution
Bench in view of the apparent conflict of opinions expressed in three E
decisions of this Court - a three-Judge Bench decision in Management of
Churakulam Tea Estage (P) Ltd. v. The Workmen &Anr., [1969] 1SCR931
and a two-Judge Bench decion in Crompton Greaves Ltd. v. Its Workmen,
[1978] 3 SCR 155 on the one hand, and a two-Judge Bench decision in
Bank of India v. T.S. Kelawala & Ors., [1990] 4 SCC 744 on the other. The F
question is whether workmen who proceed on strike, wh.ether legal or
illega~ are entitled to wages for the period of strike? In the first two cases,
viz., Churakulam Tea Estate and Crompton Greaves (supra), the view taken
is that the strike must be both legal and justified to entitle the workmen to
the wages for the period of strike whereas the latter decision in T.S. G
Kelawala (supra) has taken the view that whether the strike is legal or
illegal, the employees are not entitled to wages for the period of strike. To
keep the record straight, it must be mentioned at th~ very outset that in
the latter case, viz., T.S. Kelawala (supra) the question whether the strike
was justified or not, was not raised and, therefore, the further question
whether the employees were entitled to wages if the strike is justified, was H
494
SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R..
A
neither discussed nor answered. Secondly, the first two decisions, viz.,
~hurakulam Tea Esatate and Crompton Greaves (supra) were not cited at
the Bar while deciding the said case and hence there was no occasion to
consider the said decisions there. The decisions were not cited probably
because the question of the justifiability or otherwise of the strike did not
B
fall for consideration. It is, however, apparent from the earlier two
decisions, viz., Churakulam Tea Estate and Crompton Greaves (supra) that
the view taken there is not that the employees are entitled to wages for. the
strike-period merely because the stirke is legal. The view is that for such
entitlement the strike has both to be legal and justified. In other words, if
the strike is illegal but justified or if the strike is legal but unjustified, the
C employees would not be entitled to the wages for the strike- period. Since
the question whether the employees are entitled to wages, if the strike is
justifiec!, did not fall for consideration in the latter case, viz., in T.S.
Kelawala, there is, as stated in the beginning, only an apparent cm?flict in
the dections.
D
E
F
2. Before we deal with the question, it is necessary to refer to the
facts in the individual appeals.
CA. No. 2710 of 1991.
On 10th April, 1989, a memorandum of settlement was signed by the
Indian Banks' Association and the All Indian Bank Employees' Unions
including the National Confederation of Bank Employees as the fifth
bipartite settlement. The appellant-Bank and the respondent-State Bank
Staff Union through their respective federations were bound by the said
settlement. In terms of clauses 8( d) and 25 of the memorandum of the said
settlement, the appellant-Bank and the respondent-Staff Union had to
discuss and settle certain service conditions. Pursuant to these discussions,
three settlements were entered into between the parties on 9th June, 1989.
These settlements were under Section 2 (p) read with Section 18 (1) of the
G Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). Under
these settlements, the employees of the appellant-Bank were entitled to
certain advantages over and above those provided under the All India
Bipartite Settlement of 10th April, 1989. The said benefits were to be given
to the employees retrospectively with effect from 1st November, 1989. It
appears that the appeallant~Bank did not immediately implement the said
H settlement. Hence, the employees' Federation sent telex message to the
-
;
-
SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.)
495
appellant-Bank on 22nd June, 1989 calling upon it to implement the same A
withut further loss of time. The message also stated that the employees
would be compelled to launch agitation for implementation of the settlement as a consequence of which the working of the Bank and the service
to the customers would be affected. In response to this, the Bank in its
reply dated 27th June, 1989 stated that it was required to obtain the B
Government's approval for granting the said extra benefits and that it was
making efforts to obtain the Government's approval as soon as possible.
Hence the employees' Federation should, in the meanwhile, bear it with.
On 24th July, 1989, the employees' Federation again requested the Bank
by telex of even date to implement the said settlement forthwith, this time,
warning the Bank that in case of its failure to do so, the employees would C
observe a day's token strike after 8th August, 1989. The Bank's response
to this message was the same as on the earlier occasion. On 18th August,
1989, the employees' Federation wrote to the Bank that the settlements
signed were without .any pre-condition that they were to be cleared by the
Government and hence the Bank should implement the settlement without D
awaiting the Government's permission. The Federation also, on the same
day, wrote to the Bank calling its attention to the provisions of Rule 58.4
of the Industrial Disputes (Central) Rules, 1957 (the 'Rules') and requesting it to forthwith forward copies of the settlements to the functionaries
mentioned in the said Rule. By its reply of 23rd August, 1989, the Bank
once again repeated its earlier stand that the Bank is required to obtain E
Government's approval for granting the said extra benefits and it was
vigorously pursuing the matter with the Government for the purpose. It
also informed the Federation that the Government was actively considering
the proposal and an amicable solution would soon be reached and made
a request to the employees' Federation to exercise restraint and bear with p
it so that their efforts with the Government may not be adversely affected.
By another letter of the same date, the Bank informed the Federation that
they would forward copies of the agreements in question to the concerned
authorities as soon as the Government's approval regarding implementation of the agreement was received. The Federation by the letter of 1st
September, 1989 complained to the Bank that the Bank had been indif- G
ferent in complying with the requirements of the said Rule 58.4 and hence
the Federation itself had sent copies of the settlements to the concerned
authorities, as required by the said Rule.
3. On the same day, i.e., 1st September, 1989 the Federation issued H
496
· SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.
A
a notice of strike demanding immediate implementation of all agreements/understadings reached between the parties on 10th April, 1989 ·and
9th June, 1989 and the payment of arrears of pay and allowances pursuant
to them. As per the notice, the strike was proposed to be held on three
different days beginning .from 18th September, 1989. At this stage, the
B
Deputy Chief Labour Commissioner and Conciliation Officer (Central),
Bombay wrote both to the Bank and the Federation stating that he had
received information that the workmen in the bank through the employees'
Federation had given a strike call for 18th September, 1989. No formal
strike notice in terms of Section 22 of the Act had, however, been received
by him. He further informed that he would be holding conciliation
C proceedings under Section 12 of the Act in the office of the Regional
Labour Commissioner, Bembay on 14th September, 1989 and requested
both to make it convenient to attend the same along with a statement of
the case in terms of Rule 41 (a) of the Rules.
The conciliation proceedings were held on 14th September, 1989 and
D thereafter on 23rd September, 1989. On the latter date, the employees'
Federation categorically stated that no dispute as such existed. The question was only of implementation of the agreements/understandings reached
between the parties on 10th April, 1989 and 9th June, 1989. However, the
·Federation agreed to desist from direct action if the Bank would give in
E writing that within a fixed time they will implement the agreements/understandings and pay the arrears of wages etc. under them. The Bank's
representatives stated that the Bank had to obtain prior approval of the
Government for implementation of the settlements and as they were the
matters with the Government for obtaining its concurrence, the employees
should not resort to ·strike in the larger interests of the community. He also
F
pleaded for some more time to examine the feasibility of resolving the
matter satisfactorily. The conciliation proceedings were thereafter adjourned to 26th Septmeber, 1989. On this date, the Bank's representatives
informed. that the Government's approval had not till then been obtained,
and prayed for time till 15th October, 1989. The next meeting was held on
G 27th. September, 1989. The Conciliation Officer found that there was no
meeting ground and no· settlement could be arrived at. However, he kept
the conciliation proceedings alive by stating that in order to explore the
possibility of bringing about an understanding in the matter, he would
further hold discussions on 6th October, 1989.
H
4. On 1st October, 1989, the employees' Federation gave another
SYNDICATE BANK v. K.U.NAYAK[SAWANT,J.]
497
notice of strike stating that the employees would strike work on 16th A
October, 1989 to protest against the inaction of the Bank in implementing
the said agreements/settlements validly arrived at between the parties. In
the meeting held on 6th October, 1989, the Conciliation Officer discussed
-
the notice of strike. It appears that~ the meanwhile on 3rd October, 1989
the employees' Federation had filed Writ Petition No. 13764of1989 in the B
High Court for a writ of mandamus to the Bank to implement the three
settlements dated 9th June, 1989. In that petition, the Federation had
obtained an order of interim injunction on 6th October, 1989 restraining
, ...
the Bank from giving effect to the earlier settlement dated 10th April, 1989
and directing it first to implement the settlements dated 9th June, 1989. It
appears, further that the employees had in the meanw~, disrupted c
normal work in the Bank and had resorted to gherao. Th
ank brought
these facts, viz., filing of the writ petition and the interim order passed
therein as well as the disruption of the normal work and resort to gheraos
by the employees, to the notice of the Conciliation Officer. The meeting
before the Conciliation Officer which was fixed on 13th October, 1989 was D
adjourned to 17th October, 1989 on which date, .it was found that there
was no progress in the situation. It was on this date that the employees'
Federation gave a letter to the Conciliation Officer requesting him to treat
the conciliation proceedings as closed. However, even thereafter, the Conciliation Officer decided to keep the conciliation proceedings open to
explore the possibility of resolving the matter amicably.
E
On 12th October, 1989, the Bank issued a circular stating therein that
if the employees went ahead with the strike on 16th October, 1989, the
Management of the Bank would take necessary steps to safeguard the
interests of the Bank· and would deduct the salary for . the days the F
employees would be on strike, on the principle of "i;i.o work, no pay". In
spite of the circular, the employees went on strike on 16th' October, 1989
.,
and filed a writ petition on 7th November, 1989 to quash the circular of
12th October, 1989 and to direct the Bank not to make any deduction of
salary for the day of the strike.
G
The said .writ petition was admitted on 8th November, 1989 and an
interim iitjuction was given by the High Court restraining the Bank from
deducting the salary of the employees for 16th October;1989.
Before the High Court, it was not disputed that the Bank was a public H
498
SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.
A
utility service and as such section 22 of the Act applied. It was the
contention of the Bank that since under the provisions of sub-section (l)(d)
of the said Section 22, the employees were prohibited from resorting to
strike during the pendency of the conciliation proceedings and for seven
days after the conclusion of such proceedings, and since admittedly the
B
conciliation proceedings were pending to resolve an industrial dispute
between the parties, the strike in question was illegal. The industrial
dispute had arisen because while the Bank was required to take the
approval of the Central Government for the settlements in question, the
contention of the employees was that no such approval was necessary and
there was no such condition incorporated in the settlements. This being an
C industrial dispute within the meaning of the Act, the conciliation proceedings were validly pending on the date of the strike. As against this, the
contention on behalf of the employees was that there could be no valid
conciliation proceedings as there was no industrial dispute. The settlements
were already arrived at between the parties solemnly and there could be
D no further industrial dispute with regard to their inplementation. Hence,
the conciliation proceedings were non est. The provis~ons of Section
22(1)(d) did not, therefore, come into play.
The learned Single Judge upheld the contention of the Bank and held
that the strike wa5 illegal, and relying upon the decision of this Court in
E
T.S. · J(elawala's case (supra), dismissed the writ petition of the employees
upholding the circular under which the deduction of wages for the day of
the strike was ordered. Against the said decision, the employees' Federation preferred Letters Patent Appeal before the Division Bench of the
High Court and the Division Bench by its impugned judgment reversed the
F
decision of the learned Single Judge by accepting the contention of the
employees and negativing that of the Bank. The Division Bench in substan~, held that the approval of the Central GovefiltI\ent as a condition
precedent to their implementation was not incorporated in the settlements
nor was such approval necessary. Hence, there was no valid industrial
dispute for which the conciliation proceedings could be held. Since the
G conciliation 'proceedings were invalid, the provisions of Section 22(1)(d)
did not apply. The strike was, therefore, not illegal. The Court also held
that the strike was, in the circumstances, justified since it was the Bank
Management's unjustified attitude in not implementing the settlements,
which was responsible for the strike. The Bench then relied upon two
H decisions of thi.S Court in Churakulam Tea Estate and Crompton Greaves
-
SYNDICAIBBANK v. K.U.NAYAK[SAWANT,J.)
499
cases (supra) and held that since the strike was legal and justified, no A
d~duction of wages for the strike day could be made from the salaries of
the employees. The Bench thus allowed the appeal and quashed the
circular of the 12th October, 1989.
Since the matter has been referred to the larger bench on account
of the seeming difference of opinion expressed in T.S. Kelawala (supra) B
and the earlier decisions in Churakulam Tea Estate and Crompton Greaves
(supra), we will first discuss the facts and the view taken in the earlier two
decisions.
In Churakulam Tea Estate (supra), which is a decision of three C
learned judges, the facts were that the appellant-Tea Estate which was a
member of the Planter's Association of Kerala (South India), from time to
time since 1946, used to enter into agreements with the representatives of
the workmen, for payemnt of bonus. In respect for the years, 1957, 1958
and 1959, there was a settlement dated 25th January, 1960 between the D
Managements of the various plantations and their workers relating to
payment of bonus. The agreement provided that it would not apply to the
appellant-Tea Estate since it had not earned any profit during the said
years. On the ground that it was not a party to the agreement in question,
the appellant declined to pay any bonus for the said three years. The
workmen started agitation claiming bonus. The conciliation proceedings in E
that regard failed. All 27 workers in the appellant's factory struck work on
the afternoon of 30th November, 1961. The management declined to pay
wages for the day of the strike to the said factory workers. The management
also laid off without compensation all the workers of the estate from 1st
December, 1961 to 8th December, 1961. By its order dated 24th May, 1962, p ·
the State Government referred to the Industrial Tribunal three questions
for adjudication one of which was whether the factory workmen were
entitled to wages for the day of the strike.
The Tribunal took the view that the strike was both legal and justified
and hence directed the appellant to pay wages. This Court noted that at G
the relevant time, conciliation proceedings relating to the claim for bonus
had failed and the question of referring the dispute fot adjudication to the
Tribunal was under consideration of the Government. The Labour Minister
had called for a conference of the representatives of the management and
workmen and the conference had been fixed on 23rd November, 1961. The H
500
SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.
A
representatives of the workmen attended the conference, while the
management boycotted the same. It was the case of the workmen that it
was to protest against the recalcitrant attitude of the management in not
. attending the conference that the workers had gone on strike from 1 P.M.
on the day in question. On hehalf of the management, the provisions of
Section 23 (a) of the Act were pressed into service to contend that the
B strike resorted to by the factory workers was illegal. The said provisions
c
D
read as follows:
•
"23. No workman who is employed in any industrial establishment
shall go on strike in breach of contract and no employer of any
such workman shall declare a lock-outc
(a) during the pendency of conciliation proceedings before a
Board seven days after the conclusion of such proceedings;
x x x x x x x x x x x x x x x x x x
I
This Court noted there were no conciliation proceedings pending on
30th November,-1961 when the factory workers resorted to strike and hence
the strike was not hit by the aforesaid provision. The Court further observed that if the strike was hit by Section 23(a), it would be illegal under
E Section 24(1)(i) of the Act. Since, however, it was not so hit, it followed
that the strike in this case could not be considered to be illegal. We may
quote the exact observations .of the. Court which ~e as follows:
" ........ Admittedly there were no conciliation proceedings pending
before such a Board on November 30, 1961, the day on which the ·
F
factory workers went on strike and hence the strike does not come
under s.23(a). No ·doubt if the strike, in this case, is hit by s.23(a),
it Will be illegal under s.24(1)(i) of the Act; but we have already
held that it does not come under s.23(a) of the Act. It follows that
the strike, in this case, cannot be considered to be illegal."
G Alternatively, it was contended on behalf of the management that in any
event, the strike. in question was thoroughly unjustified. It was the
management's case that it had participated in the conciliation proceedings
and when those proceedings failed, the question of referring the dispute
was pending before the Government. The workmen could have made a
H request to. the Government to refer the dispute for adjudication and,
SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.]
501
therefore, the strike could not be justified. Support for this was also sought A
by the management from the observations made by this Court in Management of Chandramalai Estate, Emakulam v. Its ·workmen and Anr., (1960) 3
SCR 451. In that case, this Court had deprecated the conduct of workmen
going on strike without waiting for a reasonable time to know the result of
the report of the Conciliation Officer. This Court held that the said B
decision did not support the Management since the strike was not directly
in conne¢on with the demand for bonlis but was as a protest against the
unreasonable attitude of the management in boycotting the conference held
on 23rd November, 1961 by the Labour Minister of the State. Hence, this
Court held that the strike was not unjustified. In view of the fact that there
was no breach of Section 23(a) and in view also of the fact that in the C
aforesaid circumstances, the strike was not unjustified, the Court held that
the factory workers were entitled for wages for that day and the Tribunal's
award in that behalf was justified.
In Crompton Greaves Ltd. (supra}, the facts were that on 27th D
December, 1967, the appellant-management intimated the workers' Union
its decision to reduce the strength of the workmen in its branch at Calcutta
on the ground of severe recession in business~ Apprehending mass
retrenchment of the workmen, the Union sought the intervention of the
Minister in charge of Labour and the Labour Commissioner, in the matter.
Thereupon, the Assistant Labour Commissioner arranged a joint con- E
ference of the representatives of the Union and of the Company in his
office, with a view to explore the avenues for an amicable settlement. Two
conferences were accordingly held on 5th and 9th January, 1968 in which
both the parties participated. As a result of these conferences, the Company agreed to hold talks with the representatives of the Union at its F
Calcutta office on the morning of 10th January, 1968. The talk did take
place but no agreement could be arrived at. The Assistant Labour Commissioner continued to use his good offices to bring about an amicable
settlement through another joint conference which was scheduled for 12th
January, 1968. On the after-noon of 10th January, 1968, the Company
without informing the Labour Commissioner that it was proceedings to G
implement its proposed scheme of retrenchment, put up a notice of
retrenching 93 of the workmen in its Calcutta Office. Treating this step as
a serious one demanding urgent attention and immediate action, the
workmen resorted to strike w.e.f. 11th January, 1968 after giving notice to
the appellant and the Labour Directorate and continued the same upto H
. 502
SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.
A
26th June, 1968. In the meantime, the industrial dispute in relation to the
B
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· retrenchment of the workmen was referred by the State Government to the
Industrial Tribunal on 1st March, 1968. By a subsequent order dated 13th
December, 1968, the State Government also referred the issue of the
workmen's entitlement to wages for the strike-period, for adjudication to
the Industrial Tribunal. The Industrial Tribunal accepted the workmen'.s
demand for wages for the period from 11th January, 1968 to the end of
February, 1%8 but rejected their demand for the remaining period of the
strike observing that "the redress for retrenchment having been sought by
the Ullion itself through the Tribunal, there remained no justification for
the workmen to continue the strike."
In the appeal filed by the management against the award of the
Tribunal in this Court, the only question that fell for determination was
whether the award of the Tribunal granting the striking workmen wages
for the period from 11th January, 1968 was valid. In paragraph 4 of the
D judgment, this Court observed as follows :
"4. It is well settled that in order to entitle the workmen to wages
for the period of strike, the strike should be legal as well as .
justified. A strike is legal if it does not violate any provision of the
statute. Again, a strike cannot be said to be unjustified unless the
E
reasons for it are entirely perverse or unreasonable. Whether a
particular strike was justified or not is a question of fact which has
to be judged in the light of the facts and circumstances of each
case. It is also well settled that the use of force or violance or acts
of sabotage resorted to by the workmen during a strike disentitled
p
them to wages for the strike period.
After observing thus, the Court formulated the following two questions, viz., (1) whether the strike in question was illegal or unjustified? and
(2) whether the workmen resorted to force or violence during the said
period i.e., 11th January, 1968 to 29th February, 1968? While answering the
G first question, the Court pointed out that no specific provision of law has
been brought to its notice which rendered the strike illegal during the
period under consideration. The strike could also not be said to be unjustified as before the conclusion of the talks for conciliation which were going
on through the instrumentality of the Assistant Labour Commissioner, the
H Company had retrenched as many as 93 of its workmen without even
SYNDICATE BANK v. K.U.NAYAK[SAWANT,J.)
503
'intimating the Labour Commissioner that it was carrying out its proposed A
plan of effecting retrenchment ot the workmen. Hence, the Court answered
the first question in the negative. In other words, the Court held that the
strike was neither illegal nor unjustified. On the second question also the
Court held that there was no cogent and disinterested evidence to substantiate the charge that the striking workmen had resorted to force or B
violecne. That was also the finding of the Tribunal and hence the Court
held that the wages for the strike-period could not be denied to the
workmen on that ground as well.
It will thus be apparent from this decision that on the facts, it was
established that there was neither a violation of a provision of any statute C
to render the strike illegal nor in the circumstances it could be held that
the strike was unjustified. On the other hand, it was the management by
taking a precipitatory action while the conciliation proceedings were still
pending, which had given a cause to the workmen to go on strike.
5. We may now refer to the other relevant decision on the subject.
D
In Management of Kairbetta Estate, Kntagiri v. Rajamanickarti and
others, (1960) 3 SCR 371, this Court observed as follows:
" ........ Just as a strike is a weapon available to the employees for E
enforcing their industrial demands, a lock-out is a weapon available
to the employer to persuade by a coercive process the employees
to see his point of view and to accept his demands. In the struggle
between capital and labour, the weapon of strike is available to
labour and is often used by it, so is the weapon of lock-out available
to the employer and can be used by him. The use of both the
weapons by the respective parties must, however, be subject to the
relevant provisions of the Act. Chapter V which deals with strikes
and lock-outs clearly brings out the antithesis between the two
weapons and the limitations subject to which both of them must
be exercised. n
In Chandramalai Estate (supra), the facts were that on 9th August,
1955, the workers' Union submitted to the mangement a charter of fifteen
demands. Though the Managment agreed to fulfil some of the demands,
F
G
the principal demands remained unsatisfied. On 29th August, 1955, the
Labour Officer, Trichur, who had in the meantime been apprised of the H
504
SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.
A
situation both by the management and the workers' Union, advised mutal
negotiations between the representatives of the management and the
workers. Ultiniately, the matter was recotftmended by the Labour Officer
. to the Conciliation Officer, Trichur for conciliation. The Conciliation
Officer's efforts proved in vain. The last meeting for conciliation was held
B on 30th November, 1955. On the following day, the Union gave a strike
notice and the workmen went on strike w.e.f. 9th December, 1955. The
strike end~d on 5th January, 1956. Prior to this, on 5th January, 1956, the
Government h.ad referred the dispute with regard to five of the demands
for adjudication to the Industrial Tnbunal, Trivandrum. Thereafter, by its
order dated 11th June, 1956, the dispute was withdrawn from the
C Trivandrum Tribunal and referred to the Industrial, Emakulam. By its
award dated 19th October, 1957, the Tnbunal granted all the demands of
the workmen. The appeal before this Court was filed by the management
on three of the demands. One of the issues was "Are the workers entitled
to get wages for the period of the strike?". On this issue, before the
D Tnbunal, the workmen had pleaded that the strike was justified while the
management contended that strike was both illegal and unjustified. The
Tribunal had recorded a finding that both the parties were to blame for
the strike and ordered the management to pay the workers 50% of their
total emoluments for the strike-period.
E
This Court while dealing with the said question, held that it was clear
that on 30th November, 1955, the Union knew that the conciliation attempts had failed and the next step would be the report by the Conciliation
Officer to the Government. It would, therefore, have been proper and
reasonable for the workers' upion to address the Government and request
p
that a reference be made to the Industrial Tribunal. The union did not
choose to wait and after giving notice to the management on 1st December,
1955 that it had decided to strike work from 9th December, 1955, actually
started the strike from that date. The· Court also held that there was
nothing in the nature of the demands made by the Union to justify the hasty
G
action. The Court then observed as under :
·
" ......... The main demands of the Union were about the cumbly
allowance and the price of rice. As regards the cumbly allowance
thay had said nothing since 1949 when it was first stopped till the
Union raised it on August 9, 1955. The grievance for collection of
H
excess price of rice was more recent but even so it was not of such
SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.]
505
an urgent nature that the interest of labour would have suffered A
irreparably if the procedure prescri~ed by law for settlement of
such disputes through Industrial Tribunals was resorted to. After
all it is not the employer only who suffers if production is topped
by strikes. While on the one hand, it has to be remembered that
strike is a legitimate and sometimes unavoidable weapon in the B
hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged.
It will not be right for labour to think that for any kind of demand
a strike can be commenced with impunity without exhausting
reasonable avenues for peaceful achievement of their objects.
There may be cases where the demand is of such an urgent and C
serious nature that it would not be reasonable to expect labour to
wait till after asking the government to make a reference. In such
cases, stirke even before such a request has been made may well
be justified. The present is not however one of such cases. In our
opinion, the workmen might well have waited for some time after D
conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make a reference. They did
not wait at all. The conciliation efforts failed on November 30,
1955, and on the very next day the Union made its decision on
strike and sent the notice of the intended strike from the 9th
December, 1955, and on the 9th December, 1955, the workmen E
actually struck work. The Government appear to have acted quickly and referred the dispute on January 3, 1956. It was after this
that the strike was called off. We are unable to see how the strike
in such circumstances could be held to be justified."
In India General Navigation and Railway Co. Ltd. v. Their Workmen,
(1960] 2 SCR 1 this Court while dealing with the issues raised there,
observed as follows:
F
" ....... .In the first place, it is a little difficult to understand how a G
strike in respect ?f a public utility service, which clearly, illegal,
could at the same time be characterized as "perfectly justified".
These two conclusions cannot in law co-exist. The law has made
a distinction between a strike which is illegal and one which is not,
but it has not made any distinction between an illegal strike which
may be said to be justifiable and one which is not justifiable. This H
A
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D
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SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.
distinction is not warranted by the Act, and is wholly misconceived,
specially in the case of employees in a public utility service. Every
one participating in an illegal strike, is liable to be dealt with
departmentally, of course, subject to the action of the Department
being questioned before an Industrial Tribunal, but it is not permissible to characterize an illegal strike as justifiable. The only
question of practical importance which may arise in the case of an
illegal strike, would be the kind or quantum of punishment, and
that, of course, has to be modulated in accordance with the facts
and circumstances of each case. Therefore, the tendency to. condone what has been declared to be illegal by statute, must be
deprecated, and it must be clearly understood by those who take
part in an illegal strike that thereby they make themselves liable
to be dealt with by their employers. There may be reasons for
distinguishing the case of those who may have acted as mere dumb
driven cattle from those who have taken an active part in fomenting
the trouble and instigating workmen to join such a strike, or have
taken recourse to violence."
We may now refer to the decision of this Court in the T.S. &lawala
case (supra) where allegedly a different view has been taken from the one
taken in the aforesaid earlier decisions and in particular in Churakulam
Tea Estate and Crompton Greaves cases (supra).
The facts in the case were that some demands for wage revision made
by the employees of all the banks were pending at the relevant time and
in support of the said demands, the All India Bank Employees Association,
gave a call for a country-wide strike. The appellant-Bank issued a circular
F
on 23rd September, 1977 to all its branch managers and agents to deduct
wages of the employees who participate in the strike for the days they go
on strike. The employees' Union gave a call for a four-hour-strike on 29th
December, 1977. Hence, the Bank on 27th December, 1977 issued a
circular warning the employees that they would be committing a breach of
their contract of service if they participated in the strike and that they
G would not be entitled to draw the salary for the full day if they do so and
consequently they need not report for 'work for the rest of the working
hours of that day.