TaxTMI 
TaxTMI 
1998 (12) TMI 619
X X X X Extracts X X X X
X X X X Extracts X X X X
....uestion was illegal. In order to appreciate the grievances of the appellant against the decision of the High Court, it will be necessary to have a glance at the background facts. Introductory Facts: The appellant is a company registered under the Companies Act, 1956 and is carrying on the business of chemicals at Thane in the State of Maharashtra since more than 38 years. Respondent No.1 is a workers union registered under the Trade Unions Act, 1926. Respondent No.1 union had submitted a charter of demand to the appellant no 1st April, 1981. During negotiations a settlement was arrived at before the Conciliation Officer between the parties on 8th March, 1982. The said settlement was valid up to December 1984. The settlement, inter alia, amongst others, covered the following two demands; i) Demand No.14 - Privilege Leave; ii) Demand No.26 Medical Check-up; It is the case of the appellant company that during the subsistence of the aforesaid settlement, Respondent No.1 union sent a letter of demand to the Factory Manager of the appellant company on 14th March, 1983. As per the said letter, various demands were raised and it was submitted by Respondent No.1 union that it would....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice & Procedure) Rules, 1975. That the notice did not recite that Respondent No.1 union, being a recognised union, obtained vote of majority of the members in favour of the strike before serving the notice as required under Clause (b) of sub-section (1) of Section 24 of the Maharashtra Act. Consequently, according to the learned senior counsel for the appellant, strike would become illegal also as per Section 24(1)(b) of the Maharashtra Act. He next contended that the impugned strike was also hit by Section 24(1)(i) of the Maharashtra Act as it was resorted to pursuant to the said notice, during the period in which settlement of 8th March, 1982 was in operation and the notice amongst others was based also in respect of two matters covered by the settlement, namely, Demand No.14 - Privilege Leave and Demand No. 26 - Medical Check-up, both of which were settled pursuant to the aforesaid settlement. It was also contended that once the Labour Court had come to the conclusion on facts on the relevant issue in the light of the evidence laid before it and appreciated by it, it was not open to the High Court under Article 227 to set aside the findings of fact when there was no patent error....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en from the definition of Section 3(13) of the Maharashtra Act. That it was not the case of the appellant that provisions of Chapter III, especially, Sections 10 to 12 were ever complied with by Respondent No.1 union so as to be treated as a recognised union under the Maharashtra Act. Consequently, paragraph 2 of the prescribed Form-I of the notice did not apply to Respondent No.1 union. Therefore, there was no occasion for Respondent No.1 union to even whisper about obtaining vote of majority of the members in the said notice as tried to be submitted by learned senior counsel for the appellant. It was contended that the notice in question substantially complied with the requirements of the said prescribed form of the notice. Consequently, the Labour Court was in patent error when it took the view that Respondent No.1 had not given strike notice in the prescribeed form and on that score Section 24(1)(a) got attracted on the facts of the present case. Such a patent error was rightly set aside by the High Court under Article 227 of the Constitution of India. She next contended that as the appellant company did not invoke alleged violation of Section 24(1)(b) before the Labour Court, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r for which there was no express provision in the settlement. It was posterior to the settlement and not embeedded therein. Consequently, Section 24(1)(i) also was not applicable to the facts of the present case and as the Labour Court had committed a patent error in this connection it was rightly corrected by the High Court. Similar was her contention regarding Demand No.26 about Medical Check-up. It was submitted that the said settlement had nothing to do witth the prevention of discase as Demand No.26 referred to medical treatment for the disease which was already suffered by the workmen due to occupational hazards. Prevention of such disease which was the subject matter of impugned notice was anterior to the question of medical check-up and was not covered by the terms of the settlement. Even on that ground Section 24(1)(i) did not get attracted. That the High Court rightly corrected the patent error of the Labour Court in this connection. It was, therefore, contended that the High Court, in exercise of its powers under Article 227, was justified in interfering with the order of the Labour Court and in setting aside the patently erroneous order of the said court. It was, theref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nded that the High Court, in exercise of its powers under Article 227, was justified in interfering with the order of the Labour Court and in setting aside the patently erroneous order of the said court. It was, therefore, submitted that the appeal deserves to be dismissed. She contended that 40 workmen who were out of job since more than 15 years have suffered immensely and that their services have been illegally terminated by the appellant company. This part of the grievance, in our view, cannot form subject matter of the present proceedings and, therefore, whatever remedies may be available to the concerned workmen, in this connection, may be open to them in accordance with law. It will be equally open to the appellant company to resist the said future proceedings in accordance with law if at all that occasion arises. We do not express any opinion about the same. In this case, we are concerned with the short question whether the High Court was justified in setting aside the Labour Court's order declaring the strike of the workmen from 30th March, 1983 illegal as per provisions of Section 24(1)(i) and Section 24(1)(i) of the Maharashtra Act. Aforesaid rival contentions give r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the vote of the majority of the members of the union, in favour of the strike before the notice of the strike is given: (c) xxxxxx xxxxx xxxx (d) xxxxxx xxxxx xxxx (e) xxxxxx xxxxx xxxx (f) xxxxxx xxxxx xxxx (g) xxxxxx xxxxx xxxx (h) xxxxxx xxxxx xxxx (i) during any period in which any settlement or award in in operation, in respect of any of the matters covered by the settlement or award." (Emphasis supplied) Section 25 deals with procedure to be followed for getting the declaration whether strike or lock-out is illegal. Sub-section (1) thereof which is relevant for our purpose provides that: "Where the employees in any undertaking have proposed to go on strike or have commenced a strike, the State Government or the employeer of the undertaking may make a reference to the Labour Court for a declaration that such strike is illegal." Sub-section (5) of Section 25 lays down that: "Where any strike or lock-out declared to be illegal under this section is withdrawn within forty-eight hours of such declaration, such strike or lock-out shall not, for the purposes of this Act, be deemed to be illegal under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; We find that one Shri U.V. Sinkar andShri Durga Prasad P.S.R.K., working as chemists in your company have been under the pretext of retrenchment and/or slackness of work, removed by you. The ground advanced is a cloak though factually the work under no circumstances was reduced and there were junior most persons continued in the employment in the similar category. We may also bring to your notice that ever since the staff members have enrolled themselves as members of our union, your management has started harassing them and you have been demanding their resignations from the primary membership of the union. Threats were openly held that the union will be liquidated by the management. We also find that the workmen are subjected to harassment and the workmen who have been appointed as probationers are continued as probationers despite the fact that the law of the land namely Employment Standing Orders Act 1946 which becomes applicable to your establishment does not permit continuance of such employees as probationers for an indifinite period. "Similarly there have been illegal changes brought about in the matter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of 14 days from the date of receipt of this letter hereof, the workmen will proceed on strike and the consequence in such circumstances flowing there-from shall be your responsibility which please note. Thanking you, Yours faithfully Sd/ - General Secretary The said letter was addressed by Respondent No.1 union to the Factory Manager of the appellant company. As seen from this letter, the following averments 1 to 8 contained therein had nothing to do with Section 24(1)(i) of the Act. (1) Firstly it was mentioned that one Shri U.V.Sinkar and shri Durga Prasad P.S.R.K., working as chemists were wrongly retrenched. (2) Secondly the grievance of Respondent No.1 union was that the management had started harassing the staff members who were enrolled as members of the union and their resignations were subjected to harassment and the workmen who had been appointed as probationers were continued as probationers despite the fact that the law of the land, namely, Employment Standing Orders Act, 1946 did not permit such continuance. Then followed the recitals which have been strongly pressed in service by the learned senior counsel for the appellant, in support of his submission, whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to be noted that after the expiry of 14 days from the date of receipt of the letter, the workmen would proceed on strike. The said letter was replied to on behalf of the company by its Factory Manager on 23rd March, 1983 refuting the allegations made in the strike notice and calling the representatives of the union for discussion and settlement of the matter amicably. It is thereafter that the members of respondent No.1 union went on strike from 30th March, 1983 and then sent the replication through the union on 2nd April, 1983 refuting the contents of the reply of the managementt dated 23rd March, 1983. In the light of the aforesaid factual matrix, first question arises whether the impugned notice of 14th March, 1983 fell foul on the touch-stone of Section 24(1)(a) of thee Maharashtra Act. Learned senior counsel for the appellant submitted that the said notice was not in the prescribed form. For supporting this contention, he relied upon Rule 22 framed by the State Government undr Section 61(1) of the Act which lays down that: "the State Government may, by notification, in the Official Gazette, and subject to the condition of previous publication, make rules for carryi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hey are framed by the Industrial Court of maharashtra in exercise of its powers conferred under Section 44 of the Maharashtra Act. When we turn to Section 44, we find that it deals with powers of Industrial Court in connection with exercise of superintendence over all Labour Courts. It lays down as follows: "The Industrial Court shall have superintendence over all Labour Courts and may. (a) call for returns; (b) make and issue general rules and prescribe forms for regulating the practice and procedure of such Courts in matters not expressly provided for by this Act, and in particular, for securing the expeditious disposal of the cases; (c) prescribe form in which books, entries and accounts shall be kept by officers of any Courts; and (d) settle a table of fees payable for process issued by a Labour Court or the Industrial Court." It, therefore, becomes obvious that the Labour Courts (Practice & procedure) Rules, 1975 are for guidance of the Labour Courts and for regulating the practice and procedure of these courts. Thus, Rules 50 and 51 which are part and parcel of these rules, cannot have anything to do with the format of the notice of stri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....addressed to the Factory Manager of the company who was in-charge of the company at the relevant time and under whom the workmen proposing to go on strike were actually working. It is also clearly mentioneed as to forrm which date the strike is proposed to be resorted to, as it is mentioned that the strike would be resorted to on the expiry of 14 days from the date of the receipt of the letter cum notice. It is also clearly mentioned that the letter will be treated as notice for going on proposed strike. Then follows the heart of the notice, namely, reasons why the proposed strike has to be resorted. Thus, all the basic requirements of Form-I have been satisfied. even the Labour Court took the view that the substance of the notice had to be seen and not its form. Still, however, it persuaded itself to hold that the notice was not in the prescribeed fform. The said finding of the Labour Court was patently illegal and was rightly reversed by tthe High Court in the impugned judgment, Learned senior counsel for the appellant, Shri Bhandare, however, submitted that requirement of paragraph 2 of the said Form-I was not complied with in the present case. It is not mentioned in the notice ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....visions of Section 24(1)(a) of the Maharashtra Act. It must be held that the said notice was a perfectly valid strike notice as required by the said provision read with Rule 22 and Form-I of the relevant M.R.T. and P.U.I.P., Rules, 1975. The first point is, therefore, answered in negative, in favour of Respondent no.1 Union and against the appellant company. Point No.2: This takes us to the consideration of Point No.2, It is obvious that it was not the case of the appellant company before the Labour Court that the impugned strike was contrary to the provisions of Section 24(1)(b) of the Act, In fact, as seen earlier, it was not the case of the appellant company that Respondent no.1 Union, was a recognised union under the Act at the relevant time when it gave the impugned notice. COnsequently, the appellant's case before the Labour Court for getting the strike declared illegal was based only on the violation of Section 24(1)(a) of the Act. The Labour Court has also treated the proceedings accordingly and the ultimate decision rendered by the Labour Court is also to the effect that the strike notice of 14th March, 1983 was no notice in law and violative of provisions of Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act and existing rules were to apply. Now, the question is whether any part of this settlement on privilege leave was sought to be by-passed or challenged in the impugned notice so as to get voided on the touchstone of Section 24(1)(i) of the Act, The said provision lays down that "Illegal strike" means a strike which is commenced or continued during any period in which any settlement or award is in operation, in respect of any of the matters covered by the settlement or award. The question is whether the proposed strike, amongst others, was concerning the grievances in connection with any matter "covered" by the settlement. A conjoint reading of relevant clauses of settlement on demand No.14 regarding Privilege Leave shows that it was settled between the parties that during the continuation of the settlement, a workman would be entitled to claim only 12 days for 240 days of work and 1 day for every additional 12 days of work beyond 240 days thereafter in a given year. It was not the case of Respondent No.1 Union in the impugned notice of strike that they wanted any more days of privilege leave after 240 days of work in a year by way of grant of privilege leave vis-avis the number....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aharashtra Act. Nothing in this Act could be relied upon to show that if any grievance of the workmen is covered by unfair labour practice alleged against the employer, they cannot resort to strike. However learned senior counsel for the appellant Shri Bhandare, rightly submitted that such a more drastic remedy was of the last resort. He was also right when he submitted that when a less drastic remedy was available, the workmen should have resorted to the same for maintaining industrial peace and production. However, that would be in the realm of trade union policy. It may be more prudent for a union of workmen, with a view to having industrial peace and continued production as well as for not disrupting continuity of employment of workmen, to resort to negotiations, and that if needed, to go in the Labour Court with complaint under Section 28 on the ground of unfair labour practice by the employer for the alleged non-implementation of the settlement. It may also be an ideal solution of the problems. But what is ideal may not necessarily be filed by a more militant body of workmen. It may in the long run, prove to be a more drastic remedy for the workmen as they would suffer pangs ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we find that how 12 days leave for the first 240 days of work in a year and 1 day for every additional 12 days worked beyond 240 days worked are computed in a given year, is not a mater which is at all indicated or mentioned in the settlement. All that the settlement has guaranteed is the right of the workmen to earn 12 days privilege leave for 240 days worked in a year and additional one day for every 12 days beyond 240 days worked in a year. The question regarding the correct method of computation of the leave under the settlement is not expressly covered by the terms of the said settlement. Any grievance in connection with the same therefore, has to be treated to be outside the compass of the settlement. In this connection, it is profitable to note that the phrase "covered by the settlement" as found in the said clause of Section 24 is not defined by the Act nor it is defined by the Bombay Industrial Relations Act, 1946 or by the Central Act. namely, the Industrial Disputes Act, 1947. Definition section 3 sub-section (18) lays down as under : "words and expressions used in this Act and not defined therein, but defined in the Bombay Act shall, in relation to an industry....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f employment" refer to the origin of the cause of the injury". Thus the term "arising out of employment" in this case was held to refer to a grievance whose origin was found in the employment concerned as noted in this dictionary. Similarly, if the words "arising out of settlement" were employed by the legislature in the aforesaid clause, then it could have been said that any grievance regarding non-implementation of the terms of the settlement would have its origin in the settlement. However, as such a pharaseology is conspicuously absent in the said clause, it must be held that the legislature in its wisdom wanted to incidate a situation where parties to the binding settlement cannot resort to strike or lack out as the case amy be, in connection with these matters which were not expressly so covered and referred to in the settlement and thus matters which were expressly not so covered could be made the subject matter of grievance by the parties concerned during the arriving of such settlement and if a strike is resorted to by the lunion of workmen on that ground, it could not be said that the said strike would be hit ny the provisions of Section 24(1)(i) of the Act. As a result o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand no. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court to say least, was totally contrary to the express terms of the settlement of demand no. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of....