TMI Blog1964 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... : I. N. Shroff For the Respondent: M. C. Setalvad B. Narayanaswamy, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, M.S.K. Sastri and M. S. Narasimhan, JUDGMENT The judgment of the Court was delivered by DAS GUPTA, J.-Two main questions arise in this appeal. The first is whether s. 42(1)(g) of the Central Provinces and Berar Industrial Disputes and Settlement 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 respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lemankhan with full wages from the date of dismissal to the date of reinstatement. The revision application by the first respondent proved unsuccessful. The State Industrial Court, which is the revisional authority, disagreed with the Labour Court s view that the employer could not take action before a decision from the State Industrial Court or the District Industrial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bour Commissioner and the State Industrial Court. The present appeal has been preferred by the Labour Commissioner, Madhya Pradesh, No appeal has been preferred by the workman himself. It is therefore unnecessary for us to consider in this appeal the correctness or otherwise of the High Court s decision on the merits of the case. What we have to decide, as already indicated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken place is illegal. According to the appellant, it is only after on such an application the State Industrial Court or a District Industrial Court has decided that a strike is illegal, that the employer can take action. We are unable to see any justification for such a construction. It is clear to us that the phrase "rendered illegal" in s. 42(1)(g) has been deliberately 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 Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any strike or lockout or any change of which notice has been given or which has taken place is illegal." it has to be noticed that while on a reference by the State Government the State Industrial Court or a District Industrial Court "shall" decide the question of legality of the strike or lockout, it "may" decide the question on an application by the employer 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 Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge, removal or suspension purports to have been made for participation in or instigation to an illegal strike it is open to the Labour Commissioner to decide the question of illegality of a strike. On behalf of the appellant it has been suggested that exclusive jurisdiction to decide the question of legality or illegality of a strike has been given by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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