TMI Blog1998 (12) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... vances 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 go on strike on the expiry of 14 days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecite 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 reflected in the judgment of the Labour Court. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra 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, there was no question of examining the said ground eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. 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, therefore, submitted that the appeal deserves to be dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 rise to the following points for our consideration: i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trike 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 this Act. Chapter IV deals with Unfair Labour Practices. Section 26 thereof which is the first section in that Chapter lays down that: unless the contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances 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 of computing the privilege leave. There have been instances where the workmen under fabulous allegations charge-sheeted and removed, and many more are awaiting the charge-sheets. This has become the order of the day, and the lives of the workmen in the company also have become introlerable. (Emphasis supplied) There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, which in his view made the proposed strike illegal under the relevant provisions of Section 24. It will, therefore, be profitable to extract the recitals in extenso. It has been mentioned i second part of paragraph three of the notice as under: Similarly there have been illegal changess brought about in the matter of computin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 carrying out the purposes of this Act . The relevant rule is found in the Maharashtra recognition of Trade Unions Prevention of Unfair Labour Practices Rules, 1975. Rule 22 is found in Chapter V of the said rules. It lays down as follows: 22. Notice of strike :- The notice of strike under clause (a) of sub-section (1) of section 24 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 strike which a union has to give to the management as per Section 24(1)(a). Prescribed format for the purpose of the said provision will necessarily be as per Form-I as was laid down by Rule 22 of the Rules framed by the State Govt. Rules, 1975 are, therefore, totally redundant and irrelevant for resolving this controversy. We, therefore, do not dilate on the same. however, Shri Bhandare, learned senior counsel for the appellant, contends that at least prescribed Form-I as per Rule 22 of the Rules framed by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, 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 that the Union beeing a recognised union has obtained the vote of majority of the members to go on strike. It must be kept in view that this clause 2 of Form-I being an asterisk which says that any portion which is not applicable has to be struck off when not applicable. It was not the case of the appellannt at any time that Respondent no.1 Union was recognised union under the Act having followed the equirements and had obtained the certificate of a recognised union under Section 12 of the Act. On the contrary, when we turn to the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 24(1)(i). In substance, the Labour Court had no occasion to consider the question whether it was violative also of Section 24(1)(b) of the Act. It is also, in this connection, perttinent to note the prayer in the application moved by the appellant before the Labour Court under Section 25 of the Act. the said prayer reads as under: The Applicant prays that the Hon'ble Court may be pleased to declare: (i) That the strike resorted to by the workmen as well as by the staff members employed in the Applicant's factory com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 of days worked during the year. The impugned strike notice, as noted earlier, recited an entirly different grievance, namely, that there were illegal changes brought about in the matter of computing privilege leave. Actual and correct computation of privilege leave on the basis of actual days worked in a year for concerned workers was not covereed by the terms of the settlement. This grievance pertained to non-implementation of the agreed settlement regarding privilege leave and had nothing to do with the claim for any extra privilege leave in addition to that which was agreed to between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of unemployment and starvation not only for themselves but also for the members of their families. But only because such better and more purdent remedy was available, it cannot be said that the extreme step of strike resorted to be the Union by not following such remedy was per se illegal unless it fell within the fore-corners of Section 24(1)(i) of the Maharashtra Act. It is also easy to visualise that the same Maharashtra legislature which enacted Section 24(1)(i) also enacted Schedule IV Item 9 by treating it to be an unfair labour practice on the part of the employer. The Maharashtra Act la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to which the provisions of the Bombay Act apply, have the meanings assigned to them by the Bombay Act and in any other case, shall have the meanings assigned to them by the Central Act. Bombay Act is defined as Bombay Industrial Relations Act by section 3, sub-section (1) and the Central Act means Industrial Disputes Act, 1947 as defined by Section 3, sub-section (2). In any of these Acts the terms covered has not been defined. We can, therefore, turn to the general dictionary meaning of the term covered . When we undertake this exercise, we find the term cover defined by Concise Oxford Dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 of the aforesaid conclusion, it must be held that the impugned strike notice was not violative of Section 24(1)(i) Act so far as the grievence regarding computation of privilege leave was concerned. The Labour Corut had patently erred in mis-reading the relevant provisions of the Act and the express terms of the settlement while reaching the conclusion that the impugned notice refers to the grievance regarding non-implementation of the settlement terms in concetion with privilege leave and had, therefore, violated the aforesaid provisions of the Act. This patent error was rightly set aside by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent no.1. Point NO. 4. So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, 1955 (1) SCR 1104, Nagendra Nath Bora Anr. vs. The Commissioner of Hills Division Appeals, Assam, and Others 1958 SCR 1240 and Sadhu Ram vs. Delhi Transport Corporation, AIR 1984 SC 1467, learned senior counse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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