TaxTMI 
TaxTMI 
1964 (3) TMI 83
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment Act, 1947 prohibits an employer from taking action against a workman for participation in an illegal strike before it is so declared under s. 41 of the Act. The second question is whether in an application made under s. 16(3) of the Act the Labour Commissioner has jurisdiction to decide the legality or illegality of the strike. On September 21, 1956 the first respondent in this appeal, the Burhanpur Tapti Mills Ltd., served a charge-sheet on one of the employees Sulemankhan Mullaji, who is the second respondent in the appeal alleging that he had instigated workers of the Weaving Department to go on an illegal strike earlier that day. After holding an enquiry into the matter the Manager came to the conclusion that the charge had been....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Court declaring the strike to be illegal had been obtained. Being however of opinion that the enquiry had not been held in accordance with the Standing Order in cl. 26(2) and also that in awarding the punishment the Manager had not taken into consideration the matters mentioned in the Standing Orders in cl. 26(4), the Industrial Court concluded that the Labour Commissioner was justified in examining the evidence for itself. It further held that the finding of fact given by the Labour Commissioner could not be challenged in revision. The final conclusion of the State Industrial Court, as already indicated, was that the order of reinstatement made by the Labour Commissioner was fully justified. Against this order the employer (the first ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndicated is whether sec. 42 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 stood in the way of the employer taking action against a workman for participation in an illegal strike before it had been declared to be so under s. 41; and secondly, whether when there has been no such decision the Labour Commissioner has jurisdiction to decide the question of legality or illegality of the strike in an application made to him under s. 16 of the Act. The relevant provisions of s. 42 which require consideration for a decision of the first question are that: "No employer shall dismiss, discharge, suspend or reduce any employee or punish him in any other manner solely by reason of the circumstance that the employee has p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eliberately used in contradistinction to the words "held illegal" used in ss. 43, 44 and 45. Section 43 provides penalty on an employer who " declares a lockout which is held by the State Industrial Court or the District Industrial Court to be illegal". Section 44 provides penalty against an employee "who goes on a strike or who joins a strike which is held by the State Industrial Court or the District Industrial Court to be illegal". Section 45 provides penalty for instigation or incitement to or participation or acting in furtherance of a strike or lockout "which is held to be illegal by the State Industrial Court or the District Industrial Court". When the legislature used the words "held illegal" by the State Industrial Court or the Dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r or employee or any other person mentioned in the section. The use of the word "shall" in connection with the action to be taken on a reference by the State Government and "may" in connection with the action on an application by others in the same section compels the conclusion that on an application by anybody other than the State Government, the State Industrial Court or a District Industrial Court may also refuse to take action. The suggested construction of the words "rendered illegal" as "held illegal" might therefore have the curious result that even though the strike is in fact illegal within the meaning of s. 40 of the Act no action can at any time be taken against an employee for participation in it. We have accordingly come to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Act to the two authorities, viz., the State Industrial Court or a District Industrial Court, as mentioned in s. 41. There is no doubt that s. 41 which has been set out above empowers the State Industrial Court or a District Industrial Court to decide the question of legality of a strike on a reference by the Government, or application by employer or employee or others mentioned in the section. Mr. Shroff argues that it could not have been the intention of the legislature to have two parallel bodies-the Labour Commissioner as well as the State Industrial Court or a District Industrial Court-having jurisdiction to decide such a matter. For, as he points out, it may well be that while on an application under s. 16(3) the Labour Commissioner ....