http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: BUCKINGHAM AND CARNATIC CO.  LTD.

       Vs.

RESPONDENT: WORKERS OF THE BUCKINGHAM ANDCARNATIC CO.  LTD.

DATE OF JUDGMENT: 02/12/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   47            1953 SCR  219  CITATOR INFO :  F          1957 SC  82  (12)  D          1961 SC1567  (4)  RF         1981 SC 340  (14)

ACT: Indian  Factories  Act (XXV of  1934),  s.  49-B-Industrial Disputes Act (XIV of 1947), s. 2 (q)-Employees stopping work for  a  few  hours  by  concerted  action-Whether  "strike"- Continuity of service, whether interrupted-Loss of right  to holidays with pay.

HEADNOTE:   Where  the  night-shift operatives of a  department  of  a textile  mills stopped work from about 4 p.m. up to about  8 p.m.  on  a certain day, the apparent cause  of  the  strike being  that  the management of the mills had  expressed  its inability  to  comply  with the request of  the  workers  to declare  the  forenoon of that day as a  holiday  for  solar eclipse, and it was found that the stoppage of work was  the result of concerted action:   Held  (i)  that  the  stoppage of  work  fell  within  the definition  of  a  "strike" in s. 2 (q)  of  the  Industrial Disputes Act, 1947;   (ii)    that  the  strike  was an illegal  strike  as  the textile  mills was a public utility industry and  no  notice had been given to the management, even though the refusal to work continued only for a few hours; and   (iii)   that the continuity of service of the workers  was interrupted  by  this  illegal  strike  and  they  were  not entitled to claim holidays with pay under S. 49-B (1) of the Indian Factories Act, 1934.

JUDGMENT:  CIVIL  APPELLATE  JURISDICTION: Civil - Appeal No.  89  of 1952.  Appeal by ’special leave from the Judgment dated June 27,  1951,  of  the Labour Appellate Tribunal  of  India  at Calcutta  in Appeals Nos. 94 and 142 of 1950 arising out  of the   Award  of  the  Second  Industrial  Tribunal,   Madras (published  in  the Fort St. George Gazette,  Madras,  dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

October 3, (1950). N.   C.  Chatterjee  (S.  N. Mukherjee, with  him)  for  the appellant. S.   C.  C. Anthoni Pillai (President, Madras Labour  Union) for the respondents. 1952.   December 2. The Judgment of the Court Was  delivered by MAHAJAN J. 220 MAHAJAN  J.-This  is  an  appeal by  special  leave  from  a decision  dated  27th June, 1951, of  the  Labour  Appellate Tribunal of India at Calcutta in appeals Nos. 94 and 142  of 1950,  arising  out of the award of  the  Second  Industrial Tribunal, Madras.  The  relevant facts and circumstances giving rise  to  the appeal  are  as follows: On 1st November,  1948,  859  night shift  operatives of the carding and spinning department  of the Carnatic Mills stopped work, some at 4 p.m., some at  4- 30  p.m. and some at 5 p.m. The stoppage ended at 8 p.m.  in both   the  departments.   By  10  p.m,  the  strike   ended completely.  The apparent cause for the strike was that  the management  of  the  Mills had expressed  its  inability  to comply  with  the  request of the  workers  to  declare  the forenoon  of the 1st November, 1948, as a holiday for  solar eclipse.  On the 3rd November, 1948, the management put up a notice  that  the  stoppage  of work  on  the  1st  November amounted to an illegal strike and a break in service  within the meaning of the Factories Act (XXV of 1934) and that  the management had decided that the workers who had participated in  the said strike would not be entitled to  holidays  with pay as provided by the Act.  This position was not  accepted by  the  Madras Labour Union.  The Madras Government  by  an order  dated the 11th July, 1949, made under  section  10(1) (c)  of the Industrial Disputes Act (XIV of 1947),  referred this  dispute  along  with certain  other  disputes  to  the Industrial Tribunal, Madras.  The adjudicator gave the award which  was published in the Gazette on 12th  October,  1950. By  his  award  the adjudicator found that  there  could  be little  doubt that the stoppage of work by the  night  shift workers  on  the night of the last November,,  1948,  was  a strike,  that  it was an illegal strike, since  the  textile industry is notified as a public utility industry and  there could be no legal strike without a proper issue of notice in the  terms  prescribed by the Industrial Disputes  Act.   No such  notice  had been given.  In view of  this  finding  he upheld  the  view of the management that the  continuity  of service of the workers was broken by the interruption 221 caused  by the illegal strike and that as a consequence  the workers who participated in such strike were not entitled to annual  holidays  with  pay under section 49-B  (1)  of  the Factories  Act.   He,  however, considered  that  the  total deprivation of leave with pay ordered by the management  was a severe punishment and on the assumption that he had  power to  scrutinize  the  exercise  of  the  discretion  by   the management in awarding punishment, reduced the punishment by 50  per cent and held that the workers would be deprived  of only  half  their holidays with pay.  The  decision  of  the management was varied to this extent. The  Mills  as  well  as  the-Union  appealed  against  this decision  to the Labour Appellate Tribunal.   That  Tribunal upheld the contention of the Mills that the adjudicator  had no power to interfere with and revise the, discretion of the management exercised by it under section 49-B (1).  It  also upheld the contention of the Union that what happened on the night of the 1st November did not amount to a strike and did

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

not cause any interruption in the workers’ service.  This is what the Tribunal said:- "It would be absurd to hold that non-permitted absence  from work  even  for  half an hour or less in  the  course  of  a working day would be regarded as interruption of service  of a  workman  for  the purpose of the said  section.   We  are inclined  to hold that the stoppage of Work for  the  period for  about 2 to 4 hours in the circumstances of the case  is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned." In  the  result the appeal of the Union on  this  point  was allowed  and it was ordered that holidays at full  rates  as provided for in section 49-A of the Factories Act will  have to  be calculated in respect of the operatives concerned  on the  footing  that there was no break in the  continuity  of their service by the stoppage of work on 1st November, 1948. In this appeal it was contended on behalf of the Mills  that on a proper construction of section 49-B (1) 29 222 of the Factories Act: (XXV of 1934) the management was right in its decision that the continuity of service was broken by the  interruption caused by the illegal strike and that  the workers were not entitled to annual holidays with pay  under the said section inasmuch as they would not have completed a period of twelve months’ continuous service in the  factory, and that the non-permitted absence as a result of  concerted refusal  to  work even for 2 to 4 hours in the course  of  a working day amounts to an illegal strike and consequently an interruption  of  service of a workman for  the  purpose  of section 49-B. In  our judgment, this contention is well founded.   Section 49-B provides- "Every  worker who has completed a period of twelve  months continuous service in a factory shall be allowed, during the subsequent period of twelve months, holidays for a period of ten,  or, if a child, fourteen ’Consecutive days,  inclusive of  the  day or days, if any, on which he is entitled  to  a holiday under subsection (1) of section 35......" "Explanation.-A  worker shall be deemed to have completed  a period  of  twelve months continuous service  in  a  factory notwithstanding  any  interruption in service  during  those twelve  months  brought  about  by  sickness’,  accident  or authorized leave not exceeding ninety days in the  aggregate for  all three or by a lookout, or by a strike which is  not an illegal strike, or by intermittent periods of involuntary unemployment          not          exceeding          thirty days........................ It  is clear that the benefit of this section is not  avail- able  in cases where the interruption in service is  brought about  by  an  illegal  strike.   Section  2  q  )  of   the Industrial, Disputes Act (Act XIV of 1947) defines  "strike" as meaning- "a  cessation of work by a body of persons employed  in  any industry acting in combination, or a concerted refusal, or a refusal  under  a  common understanding, of  any  number  of persons who are or have 223 been   so  employed  to  continue  to  work  or  to   accept employment. The  adjudicator found on the evidence and circumstances  of the  case  that  there was concert and  combination  of  the workers  in stopping and :refusing resume work on the  night of  the 1st November’ He observed that the fact that a  very large  number of leave applications was put in  for  various

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

reasons pointed to the concerted action and that the  appli- cation  given by the workers and their representatives  also indicated  that  they were acting in  combination  both   in striking and refusing to go back to work on the ground  that they  were entitled to leave for the night shift whenever  a half a day’s leave was granted to the day shift workers.  He further hold that the refusal of the workers to resume  work in spite of the attempts made by the officers and their  own Madras Labour Union representatives indicated that they were not  as a body prepared to resume work unless  their  demand was conceded. In  our opinion, the conclusion reached by  the  adjudicator was clearly right and the conclusion cannot be avoided  that the  workers  ’were acting in concert.  That being  so,  the action  of  the  workers on the night of  the  1st  November clearly  fell  within  the  definition  of  the   expression "strike" in section 2(q) of the Industrial Disputes Act.  We have  not been able to appreciate the view expressed by  the Appellate Tribunal that stoppage of work for a period of two to  four  hours  and such non-permitted  absence  from  work cannot  be regarded as strike.  Before the  adjudicator  the only point raised by the Union was that it was a spontaneous and  lightning  strike  but it was not  said  by  them  that stoppage  of  work  did not fall within  the  definition  of "’strike" as given in the Act.  It cannot be disputed  -that there was a cessation of work by a body of persons  employed in  the Mills and that they were acting in  combination  and their  refusal  to go back to work was concerted.   All  the necessary  ingredients,. therefore, of the definition  exist in  the  present  case  and the  stoppage  of  work  on  1st November, 224 1948,  amounted  to  a  strike.  It was not  a  case  of  an individual  worker’s failure to turn up for work.  It was  a concerted  action on the part of a large number of  workers. The Appellate Tribunal was thus in error in not regarding it as  a strike and it had no discretion not to regard what  in law was a strike as not amounting to a strike.  If it cannot be  denied that the stoppage of work on 1st November,  1948, amounted  to  a  strike, then it was  certainly  an  illegal strike  because no notice had been given to the  management, the Mills being a public utility industry. It  was contended by the President of the Union, who  argued the  case on behalf of the workers, that the  Factories  Act had  no application to this case, because by a  notification of  the  Government of Madras dated 23rd August,  1946,  the Buckingham  an  Carnatic Mills had been  exempted  from  the provisions of Chapter IV-A of the Act and the provisions  of sections  49-A and 49-’B were not therefore attracted to  it and  that no substantial question of law in respect  to  the construction of the section fell to be decided by this Court and  that  being so, this Court should  not  entertain  this appeal   under  article  136  of  the  Constitution.    This contention   has  no  validity.   The  Mills  were   granted exemption  from  the  provisions  of  Chapter  IV-A  of  the Factories  Act because their leave rules were in  accordance with  the provisions of Chapter IV-A of the  Factories  Act. These  rules  being in similar terms, the  decision  of  the matter depends on the construction of the rules and this in- volves a substantial question of law. Reliance  was next placed on section 49-A of  the  Factories Act which provides that the provisions of the new Act  would not operate to the prejudice of any rights which the workers were entitled to under the’ earlier rules and it was  argued that  under  the leave rules of the  Mills  which  prevailed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

prior  to  the coming into force of the Factories  Act,  the workers  were entitled to privilege leave and there  was  no provision  in those rules similar to the one that  has  been made in section 49-B or in the new rules and that the Mills 225 had  no  right  to deprive them of leave by  reason  of  the strike.  This contention cannot be sustained because section 49-A (2) of the Factories Act has no application to the case of  the  Carnatic Mills in view of the  notification’  dated 23rd August, 1946. Lastly,  it  was  urged that the stoppage  of  work  on  1st November,  1948, was not a concerted action -on the part  of the workers and that several workers in their own individual capacity wanted leave on that date.  In our opinion, in view of the facts and circumstances detailed in the adjudicator’s award  this contention cannot be seriously  considered.   We concur  in  the view of the facts taken by  the  adjudicator that  the  action  of the 859 workers on the  night  of  1st November,  1948,  fell  within the definition  of  the  word "strike" as given in section 2(q) of the Industrial Disputes Act  and it was an illegal strike and the workers thus  lost the  benefit of holidays that they would have otherwise  got under the rules. The learned counsel for the appellant undertook on behalf of the  management ex gratia that it would condone the  default of  the workers on 1st November, 1948, and the cessation  of work on that night would not be treated as depriving them of the  holidays under the rules and we appreciate -the  spirit in  which  this  undertaking was given  and  hope  that  the workers would also take it in that spirit. The  result is that the appeal is allowed, and the  decision of the Labour Appellate Tribunal on this point is set aside. In  the  circumstances of this case we make no order  as  to costs.                      Appeal allowed. Agent for the appellant: S. P. Varma. 226