These appeals have been referred to the Constitution Bench in view of the apparent conflict of opinions expressed in three decisions of this Court - a three-Judge Bench decision in Churakulam Tea Estate (P) Ltd. v. Workmen [AIR 1969 SC 998] and a two-Judge Bench decision in Crompton Greaves Ltd. v. Workmen [(1978) 3 SCC 155] on the one hand, and a two-Judge Bench decision in Bank of India v. T.S. Kelawala [(1990) 4 SCC 744] on the other hand.
ISSUE
The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of strike?
CASE REFERRED TO
In Crompton Greaves Ltd. v. Workmen [(1978) 3 SCC 155, on 27-12-1967, the appellant Management intimated the workers’ Union's 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. Efforts were made to come to an amicable settlement.
On the afternoon of 10-1-1968, the Company without informing the Labour Commissioner that it was proceeding to 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. 11-1-1968 after giving notice to the appellant and the Labour Directorate and continued the same up to 26-6-1968. In the meantime, the industrial dispute in relation to the retrenchment of the workmen was referred by the State Government to the Industrial Tribunal. The Industrial Tribunal accepted the workmen’s demand for wages for the period from 11-1-1968 to the end of February 1968 but rejected their demand for the remaining period of the strike observing that “the redress for retrenchment having been sought by the Union itself through the Tribunal, there remained no justification for the workmen to continue the strike”.
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, that is, 11-1-1968 to 29-2-1968. While answering the 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 Company had retrenched as many as 93 of its workmen without even intimating the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of 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 violence. 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.
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 11-1-1968 to 29-2-1968 was valid.
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 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.
In Chandramalai Estate, Ernakulam v. Workmen [AIR 1960 SC 902] 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. The workers’ Union submitted to the Management a charter of fifteen demands. Though the Management agreed to fulfil some of the demands, the principal demands remained unsatisfied. The Conciliation Officer’s efforts proved in vain.
This Court while dealing with the said question held that it was clear that on 30-11- 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’ Union to address the Government and request that a reference be made to the Industrial Tribunal. The Union did not choose to wait and after giving notice to the Management on 1-12-1955 that it had decided to strike work from 9-12-1955, 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 action.
In the Bank of India v. T.S. Kelawala [(1990) 4 SCC 744] case 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.
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 countrywide strike. The appellant-Bank issued a circular on 23-9-1977 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 29-12-1977. Hence, the Bank on 27-12-1977 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 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. Notwithstanding it, the employees went on four-hour strike from the beginning of the working hours.
The only question debated was whether, even assuming that the strike was legal, the Bank was entitled to deduct wages as it purported to do under the circular in question.
It is while answering this question that this Court held that the legality or illegality of the strike had nothing to do with the liability for the deduction of the wages. Even if the strike is legal, it does not save the workers from losing the salary for the period of the strike. It only saves them from disciplinary action, since the Act impliedly recognises the right to strike as a legitimate weapon in the hands of the workmen. The illegal strike is a misconduct which invites disciplinary action while the legal strike does not do so. However, both legal and illegal strikes invite deduction of wages on the principle that whoever voluntarily refrains from doing work when it is offered to him, is not entitled for payment for work he has not done. In other words, the Court upheld the dictum “no work no pay”.
HELD
The Court observed that there is nothing in the decisions of this Court in the Churakulam Tea Estate and Crompton Greaves cases or the other earlier decisions cited above which is contrary to the view taken in T.S. Kelawala. What is held in the said decisions is that to entitle the workmen to the wages for the strike period, the strike has both to be legal and justified. In other words, if the strike is only legal but not justified or if the strike is illegal though justified, the workers are not entitled to the wages for the strike period.
We, therefore, hold endorsing the view taken in T.S. Kelawala that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act.
The strike as a weapon was evolved by the workers as a form of direct action during their long struggle with the employers. It is essentially a weapon of last resort being an abnormal aspect of the employer-employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise.
The cessation or stoppage of works whether by the employees or by the employer is detrimental to the production and economy and to the well-being of the society as a whole. It is for this reason that the industrial legislation, while not denying the right of workmen to strike, has tried to regulate it along with the right of the employer to lockout and has also provided a machinery for peaceful investigation, settlement, arbitration and adjudication of the disputes between them.
The question whether a strike or lockout is legal or illegal does not present much di