ESSORPE MILLS LTD. V. PRESIDING OFFICER, LABOUR COURT (2008) 7 SCC 594
FACTS
Challenge in this appeal is to the order passed by a Division Bench of the Madras High Court dismissing the writ appeals filed by the appellant.
On 14-3-1991 the General Secretary of the Tamil Nadu Panchalai Workers’ Union served a strike notice on the management purportedly under Section 22(1) of the Industrial Disputes Act, 1947 (“the Act”) stating that “strike would commence on or after 24-3-1991” and on 8th and 24th April and 13-5-1991. Respondents 2 to 23 were dismissed from service after holding a disciplinary enquiry. The petitions were filed under Section 2-A of the Act for reinstatement with back wages and continuity of service. The Labour Court by its award dated 24-1-1994 held that the strike was illegal.
The award was challenged by the appellant as well as the workmen before the High Court.
A learned Single Judge of the High Court allowed Writ Petition filed by Respondents 2 to 23 on the ground of non-compliance with Section 33(2)(b) of the Act and directed reinstatement of the workmen with full back wages and continuity of service. On 30-12-2003 by the impugned judgment a Division Bench of the High Court dismissed the writ appeals holding that the judgment of this Court did not make any distinction between the proceedings pending before the Conciliation Officer and those pending before an Industrial Tribunal.
On 21-2-2004 the special leave petitions were filed and when the matter came up for hearing on 20-3-2006 after notice, a Bench of this Court suggested certain terms for amicable settlement as set out in the order of the said date. The appellant agreed to the terms proposed, but Respondents 2 to 23 did not agree.
ISSUE
Whether the strike carried out by the workmen was illegal?
APPELLANT’S CONTENTIONS:
The Appellants contended that the High Court failed to appreciate that in the absence of a valid notice of strike in terms of Section 22(1) there can be no commencement of conciliation proceedings in terms of Section 20(1) of the Act.
Section 22(1) prohibits a strike in a public utility service, in breach of contract, without giving to the employer advance notice of six weeks. It prohibits strike
within the notice period of six weeks,
within fourteen days of giving such notice,
before the expiry of the date of strike specified in such a notice,
during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings.
The strike notice issued on 14-3-1991 stating that the strike will commence on or after 24-3-1991 i.e. (just ten days’ notice) does not satisfy the requirement of advance notice stipulated under Section 22(1). Therefore, it is not a valid notice. Consequently, in the eye of the law there was no commencement of conciliation proceedings as a result of the said notice.
RESPONDENT’S CONTENTIONS
The stand of Respondents 2 to 23 is that the appellant did not raise the plea that there was no conciliation proceeding pending at the time of dismissal of the workmen. It is stated that there was deemed conciliation.
The stand of the respondents is that simultaneous notice is required to be given to the Conciliation Officer in Form ‘L’ and, therefore, Section 20 has full application.
Before the learned Single Judge the primary issue revolved around the question as to whether any notice of conciliation had been issued by the Conciliation Officer and, therefore, there was pendency of conciliation proceeding. The learned Single Judge held against the appellant relying on a decision of this Court in Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275] holding that once strike notice is issued under Section 22 of the Act, conciliation proceeding is deemed to have been commenced and no further notice from the Conciliation Officer is necessary.
HELD
The High Court failed to appreciate that in terms of Section 33-A for not obtaining permission of the Conciliation Officer under Section 33, the only legal consequence provided is that the Conciliation Officer shall take the complaint of contravention of the provisions of Section 33 into account in mediating in and promoting the settlement of such industrial dispute. Therefore, the order of dismissal in any event was not illegal. There was no complaint made to the Conciliation Officer in this case.
The Conciliation Officer, unlike the Labour Court or an Industrial Tribunal, has no power of adjudication. Therefore, he cannot set aside the order of dismissal. The dismissal remains valid.
A few facts which have relevance need to be noted. The notice was given about the proposed strike after the strike. Undisputedly, the workers resorted to strike on 8-11-1990. The notice was given on 14-3-1991.
Different stages enumerated by Section 22(1) are as follows:
advance notice of six weeks;
fourteen days given to the employer to consider the notice;
the workmen giving the notice cannot go on strike before the indicated date of strike;
pendency of any conciliation proceedings.
In this case no conciliation proceedings were pending under sub-section (4). Subsection (4) of Section 22 states that the notice of strike referred to in sub-section (1) has to be given in such manner as may be prescribed. The Central Rule 71 prescribes the manner in which the notice has to be given and the notice is in Form ‘L’. The notice as mandated under Section 22 has to be given to the employer.
According to the High Court the conciliation proceeding is deemed to have been commenced on the date on which the notice of strike under Section 22 is received by the Conciliation Officer. The High Court seems to have lost sight of the crucial words “notice of strike or lockout under Section 22”. Section 22 presupposes a notice before the workmen resorted to strike. The notice has to be given to the employer. Sub-section (6) of Section 22 also has relevance because within a particular time period after receipt of the notice under sub-section (1) he shall report to the appropriate Government or to such authority as the Government may prescribe.
Somewhat unacceptable plea has been taken by Respondents 2 to 23 that in terms of Section 22(1)(b) after fourteen days of giving the notice, the workmen can go on strike. If this plea is accepted, six weeks’ time stipulated in Section 22(1)(a) becomes redundant. The expression “giving such notice” as appearing in Section 22(1)(b) refers to the notice under Section 22(1)(a). Obviously, therefore, the workmen cannot go on strike within six weeks’ notice in terms of Section 22(1)(a) and fourteen days thereafter in terms of Section 22(1)(b).
The expression “such notice” refers to six weeks’ advance notice. Earlier illegal strike is not remedied by a subsequent strike as provided in Section 22. If such a stand is accepted it will go against the requirement of Section 22 which aims at stalling action for illegal strike.
The judgments of the learned Single Judge as well as that of the Division Bench cannot be sustained and deserve to be set aside. Notwithstanding the same the fair approach indicated by the appellant by accepting the decision of this Court by order dated 20-3-2006 can be given effect to. The appeal is allowed to the extent indicated above.