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PETITIONER: SYNDICATE BANK

       Vs.

RESPONDENT: K.UMESH NAYAK

DATE OF JUDGMENT19/03/1994

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J) MOHAN, S. (J) RAY, G.N. (J) SINGH N.P. (J)

CITATION:  1995 AIR  319            1994 SCC  (5) 572  JT 1994 (5)   647        1994 SCALE  (4)68

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by P.B.  SAWANT,  J.- 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.  Workmen1  and  a two-Judge Bench  decision  in  Crompton Greaves  Ltd. v. Workmen2 on the one hand, and  a  two-Judge Bench  decision  in Bank of India v. TS.  Kelawala3  on  the other.   The  question  is whether workmen  who  proceed  on strike, whether legal or illegal, are entitled to wages  for the  period  of  strike?   In the  first  two  cases,  viz., Churakulam Tea Estate1 and Crompton Greaves2, the view taken is  that  the  strike must be both legal  and  justified  to entitle  the workmen to the wages for the period  of  strike whereas the latter decision in TS.  Kelawala3 has taken  the view  that  whether  the strike is  legal  or  illegal,  the employees  are  not  entitled to wages  for  the  period  of strike.   To keep the record straight, it must be  mentioned at  the  very  outset that in the  latter  case,  viz.,  TS. Kelawala3 the question +  See Record of Proceedings : State Bank of India v.  State Bank Staff Union, 1992 Supp (3) SCC 99 1  (1969) 1 SCR 931  AIR 1969 SC 998:(1969) 2 LLJ 407 2  (1978) 3 SCC 155 1978 SCC (L&S) 447 3  (1990) 4 SCC 744: 1991 SCC (L&S) 170: (1991) 15 ATC 747 578 whether the strike was justified or not, was not raised and, therefore,  the further question whether the employees  were entitled  to wages if the strike is justified,  was  neither discussed nor answered.  Secondly , the first two decisions, viz., Churakulam Tea Estate1 and Crompton Greaves2 were  not cited  at  the Bar while deciding the said  case  and  hence

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there was no occasion to consider the said decisions  there. The  decisions were not cited probably because the  question of  the  justifiability or otherwise of the strike  did  not fall  for consideration.  It is, however, apparent from  the earlier  two  decisions, viz., Churakulam  Tea  Estate1  and Crompton GreaveS2 that the view taken there is not that  the employees are entitled to wages for the strike period merely because  the  strike is legal.  The view is  that  for  Such entitlement the  strike has both to be legal and  justified. In other words, if the strike is illegal but justified or if the strike is legal but unjustified, the employees would not be  entitled to the wages for the strike period.  Since  the question whether the employees are entitled to wages, if the strike  is justified, did not fall for consideration in  the latter case, viz., in T.S. Kelawala3, there is, as stated in the beginning, only an apparent conflict in the decisions. 2.  Before  we deal with the question, it  is  necessary  to refer to the facts in the individual appeals. CA No. 2710 of 1991 3. On 10-4-1989 a memorandum of settlement was signed by the Indian Banks’ Association and the All Indian Bank Employees’ Unions   including  the  National  Confederation   of   Bank Employees as the fifth bipartite settlement.  The appellant- Bank and the respondent-State Bank Staff Union through their respective  federations were bound by the  said  settlement. In  terms  of clauses 8(d) and 25 of the memorandum  of  the said settlement, the appellant-Bank and the respondent-Staff Union had to discuss and settle certain service  conditions. Pursuant  to  these  discussions,  three  settlements   were entered  into  between  the  parties  on  9-6-1989.    These settlements were under Section 2(p) read with Section  18(1) of  the Industrial Disputes Act, 1947 (hereinafter  referred to as the ’Act’).  Under these settlements, the employees of the appellant-Bank were entitled to certain advantages  over and  above  those  provided under the  All  India  Bipartite Settlement of 10-4-1989.  The said benefits were to be given to the employees retrospectively with effect from 1-11-1989. It  appears  that  the appellant Bank  did  not  immediately implement  the  said  settlement.   Hence,  the   employees’ Federation sent telex message to the appellant-Bank on 22-6- 1989  calling upon it to implement the same without  further loss  of time.  The message also stated that  the  employees would be compelled to launch agitation for implementation of the settlement as a consequence of which the working of  the Bank and the service to the customers would be affected.  In response  to  this, the Bank in its  reply  dated  27-6-1989 stated  that  it  was required to  obtain  the  Government’s approval  for granting the said extra benefits and  that  it was  making efforts to obtain the Government’s  approval  as soon  as possible.  Hence the employees’ Federation  should, in the meanwhile, bear it with.  On 24-7-1989 the Employees’ Federation again 579 requested  the Bank by telex of even date to  implement  the said settlement forthwith, this time, warning the Bank  that in case of its failure to do so, the employees would observe a day’s token strike after 8-8-1989.  The Bank’s response to this  message was the same as on the earlier  occasion.   On 18-8-1989, the employees’ Federation wrote to the Bank  that the  settlements signed were without any  precondition  that they were to be cleared by the Government and hence the Bank should   implement  the  settlement  without  awaiting   the Government’s  permission.  The Federation also, on the  same day,  wrote  to  the  Bank  calling  its  attention  to  the provisions of Rule 58.4 of the Industrial Disputes (Central)

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Rules,  1957  (the ’Rules’) and requesting it  to  forthwith forward  copies  of  the settlements  to  the  functionaries mentioned  in the said rule.  By its reply of 23-8-1989  the Bank once again repeated its earlier stand that the Bank  is required  to obtain Government’s approval for  granting  the said  extra  benefits  and it was  vigorously  pursuing  the matter  with  the  Government  for  the  purpose.   It  also informed  the  Federation that the Government  was  actively considering the proposal and an amicable solution would soon be  reached and made a request to the employees’  Federation to exercise restraint and bear with it so that their efforts with  the  Government  may not be  adversely  affected.   By another  letter  of  the same date, the  Bank  informed  the Federation that they would forward copies of the  agreements in  question  to the authorities concerned as  soon  as  the Government’s   approval  regarding  implementation  of   the agreement  was  received.  The Federation by the  letter  of 1-9-1989  complained  to  the Bank that the  Bank  had  been indifferent  in complying with the requirements of the  said Rule 58.4 and hence the Federation itself had sent copies of the settlements to the authorities concerned, as required by the said rule. 4.  On the same day, i.e., 1-9-1989 the Federation issued  a notice  of strike demanding immediate implementation of  all agreements/  understandings reached between the  parties  on 10-4-1989 and 9-6-1989 and the payment of arrears of pay and allowances pursuant to them.  As per the notice, the  strike was  proposed to be held on three different  days  beginning from  18-9-1989.   At this stage, the  Deputy  Chief  Labour Commissioner  and  Conciliation  Officer  (Central),  Bombay wrote  both to the Bank and the Federation stating  that  he had  received  information  that the  workmen  in  the  Bank through  the employees’ Federation had given a  strike  call for 18-9-1989.  No formal strike notice in terms of  Section 22  of  the  Act had, however, been  received  by  him.   He further  informed  that  he would  be  holding  conciliation proceedings under Section 12 of the Act in the office of the Regional  Labour  Commissioner,  Bombay  on  14-9-1989   and requested  both  to make it convenient to  attend  the  same along  with a statement of the case in terms of Rule 41  (a) of the Rules. 5.  The conciliation proceedings were held on 14-9-1989  and thereafter on 23-9-1989.  On the latter date, the employees’ Federation  categorically  stated that no  dispute  as  such existed.   The  question was only of implementation  of  the agreements/understandings reached between the parties on 10- 4-1989  and  9-6-1989.  However, the  Federation  agreed  to desist 580 from  direct action if the Bank would give in  writing  that within    a   fixed   time   they   will    implement    the agreements/understandings and pay the arrears of wages  etc. under them.  The Bank’s representatives stated that the Bank had   to  obtain  prior  approval  of  the  Government   for implementation  of  the  settlements and as  they  were  the matters  with the Government for obtaining its  concurrence, the  employees  should not resort to strike  in  the  larger interests  of the community.  He also pleaded for some  more time  to  examine the feasibility of  resolving  the  matter satisfactorily.     The   conciliation   proceedings    were thereafter adjourned to 26-9-1989.  On this date, the Bank’s representatives informed that the Government’s approval  had not till then been obtained, and prayed for time till 15-10- 1989.   The  next  meeting  was  held  on  27-9-1989.    The Conciliation Officer found that there was no meeting  ground

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and no settlement could be arrived at.  However, he kept the conciliation  proceedings alive by stating that in order  to explore  the possibility of bringing about an  understanding in  tile matter, he would further hold discussions on  6-10- 1989. 6.  On  1-10-1989, the Employees’  Federation  gave  another notice  of  strike stating that the employees  would  strike work  on 16-10-1989 to protest against the inaction  of  the Bank in implementing the said agreements/settlements validly arrived  at  between the parties.  In the  meeting  held  on 6-10-1989, the Conciliation Officer discussed the notice  of strike.   It appears that in the meanwhile on 3-10-1989  the employees’ Federation had filed Writ Petition No., 13764  of 1989 in the High Court for a writ of mandamus to the Bank to implement  the  three settlements dated 9-6-1989.   In  that petition,  the Federation had obtained an order  of  interim injunction  on  6-10-1989 restraining the Bank  from  giving effect  to  the  earlier  settlement  dated  10-4-1989   and directing  it first to implement the settlements dated  9-6- 1989.   It  appears further that the employees  had  in  the meanwhile,  disrupted  normal  work  in  the  Bank  and  had resorted  to  gherao.  The Bank brought these  facts,  viz., filing  of  the writ petition and the interim  order  passed therein  as  well as the disruption of the normal  work  and resort  to  gheraos by the employees, to the notice  of  the Conciliation  Officer.  The meeting before the  Conciliation Officer  which  was  fixed on 13-10-1989  was  adjourned  to 17-10-1989  on  which date, it was found that there  was  no progress  in  the situation.  It was on this date  that  the employees’  Federation  gave a letter  to  the  Conciliation Officer requesting him to treat the conciliation proceedings as  closed.   However,  even  thereafter,  the  Conciliation Officer decided to keep the conciliation proceedings open to explore the possibility of resolving the matter amicably. 7. On 12-10-1989 the Bank issued a circular stating  therein that  if the employees went ahead with the strike on  16-10- 1989, the Management of the Bank would take necessary  steps to safeguard the interests of the Bank and would, deduct the salary for the days the employees would be on strike, on the principle  of "no work, no pay".  In spite of the  circular, the employees went on strike on 16-10-1989 and filed a  writ petition on 7-11-1989 to quash 581 the  circular  of 12-10-1989 and to direct the Bank  not  to make any deduction of salary for the day of the strike. 8.  The said writ petition was admitted on 8-11-1989 and  an interim  injunction was given by the High Court  restraining the Bank from deducting the salary of the employees for  16- 10-1989. 9. Before the High Court, it was not disputed that the  Bank was  a public utility service and as such Section 22 of  the Act  applied.  It was the contention of the Bank that  since under  the  provisions  of sub-section (1)(d)  of  the  said Section 22, the employees were prohibited from resorting  to strike  during the pendency of the conciliation  proceedings and for seven days after the conclusion of such proceedings, and  since  admittedly  the  conciliation  proceedings  were pending  to  resolve  an  Industrial  dispute  between   the parties, the strike in question was illegal.  The industrial dispute  had arisen because while the Bank was  required  to take  the  approval  of  the  Central  Government  for   the settlements in question, the contention of the employees was that  no such approval was necessary and there was  no  such condition  incorporated in the settlements.  This  being  an industrial  dispute  within  the meaning  of  the  Act,  the

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conciliation proceedings were validly pending on the date of the  strike.  As against this, the contention on  behalf  of the employees was that there could be no valid  conciliation proceedings  as  there  was  no  industrial  dispute.    The settlements  were  already arrived at  between  the  parties solemnly  and there could be no further  industrial  dispute with   regard   to   their   implementation.    Hence,   the conciliation  proceedings were non est.  The  provisions  of Section 22(1)(d) did not, therefore, come into play. 10.  The learned Single Judge upheld the contention  of  the Bank and held that the strike was illegal, and relying  upon the decision of this Court in T.S. Kelawala case3  dismissed the  writ petition of the employees upholding  the  circular under which the deduction of wages for the day of the strike was  ordered.   Against the said  decision,  the  employees’ Federation  preferred  Letters  Patent  Appeal  before   the Division  Bench of the High Court and the Division Bench  by its  impugned judgment reversed the decision of the  learned Single  Judge by accepting the contention of  the  employees and  negativing  that of the Bank.  The  Division  Bench  in substance, held that the approval of the Central  Government as  a  condition precedent to their implementation  was  not incorporated  in  the  settlements  nor  was  such  approval necessary.  Hence, there was no valid industrial dispute for which the conciliation proceedings could be held.  Since the conciliation  proceedings  were invalid, the  provisions  of Section 22(1)(d) did not apply.  The strike was,  therefore, not  illegal.  The Court also held that the strike  was,  in the   circumstances,  justified  since  it  was   the   Bank Management’s  unjustified attitude in not  implementing  the settlements,  which  was responsible for  the  strike.   The Bench  then  relied  upon two decisions  of  this  Court  in Churakulam Tea Estate1 and Crompton Greaves2 cases and  held that since the strike was legal and justified, no  deduction of wages for the 582 strike day could be made from the salaries of the employees. The  Bench thus allowed the appeal and quashed the  circular of the 12-10-1989. 11.  Since the matter has been referred to the larger  bench on account of the seeming difference of opinion expressed in TS.   Kelawala3 and the earlier decisions in Churakulam  Tea Estate1  and  Crompton Greaves2, we will first  discuss  the facts and the view taken in the earlier two decisions. 12.  In Churakulam Tea Estate1 which is a decision of  three learned Judges, the facts were that the appellant-Tea Estate which  was a member of the Planter’s Association  of  Kerala (South  India), from time to time since 1946, used to  enter into agreements with the representatives of the workmen, for payment  of bonus.  In respect of the years 1957,  1958  and 1959,  there  was a settlement dated 25-1-1960  between  the Managements  of  the various plantations and  their  workers relating  to payment of bonus.  The agreement provided  that it would not apply to the appellant-Tea Estate since ’it had not  earned any profit during the said years.  On the  round that  it was not a party to the agreement in  question,  the appellant  declined  to  pay any bonus for  the  said  three years.   The workmen started agitation claiming bonus.   The conciliation  proceedings  in that regard  failed.   All  27 workers  in  the  appellant’s factory  struck  work  on  the afternoon  of  30-11-1961.  The Management declined  to  pay wages for the day of the strike to the said factory workers. The  Management also laid off without compensation  all  the workers  of the estate from 1-12-1961 to 8-12-1961.  By  its order dated 24-5-1962, the State Government referred to  the

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Industrial Tribunal three questions for adjudication one  of which was whether the factory workmen were entitled to wages for the day of the strike. 13.  The  Tribunal took the view that the  strike  was  both legal and justified and hence directed the appellant to  pay wages.   This  Court  noted  that  at  the  relevant   time, conciliation proceedings relating to the claim for bonus had failed  and  the  question  of  referring  the  dispute  for adjudication to the Tribunal was under consideration of  the Government.  The Labour Minister had called for a conference of the representatives of the Management and workmen and the conference    had   been   fixed   on    23-11-1961.     The representatives  of  the workmen  attended  the  conference, while the Management boycotted the same.  It was the case of the workmen that it was to protest against the  recalcitrant attitude  of the Management in not attending the  conference that  the workers had gone on strike from 1 p.m. on the  day in question.  On behalf of the Management, the provisions of Section  23(a)  of  the Act were  pressed  into  service  to contend  that the strike resorted to by the factory  workers was illegal.  The said provisions read as follows:               "23.  No  workman  who  is  employed  in   any               industrial establishment shall go on strike in               breach of contract and no employer of any such               workman shall declare a lockout- 583 (a)  during the pendency of conciliation proceedings  before a  Board  and  seven  days  after  the  conclusion  of  such proceedings;             *     *        *         * " This Court noted that there were no conciliation proceedings pending  on 30-11-1961 when the factory workers resorted  to strike  and  hence the strike was not hit by  the  aforesaid provision.   The Court further observed that if  the  strike was hit by Section 23(a), it would be illegal under  Section 24(1)(i) of the Act.  Since, however, it was not so hit,  it followed  that  the  strike  in  this  case  could  not   be considered   to  be  illegal.   We  may  quote   the   exact observations of the Court which are as follows:               "Admittedly   there   were   no   conciliation               proceedings pending before such a Board on 30-               11-1961, the day on which the factory  workers               went  on strike and hence the strike does  not               come  under  Section 23(a).  No doubt  if  the               strike, in this case, is hit by Section 23(a),               it  will be illegal under Section 24(1)(i)  of               the Act; but we have already held that it does               not  come under Section 23(a) of the Act.   It               follows that the strike, in this case,  cannot                             be considered to be illegal." Alternatively, it was contended on behalf of the  Management that  in  any event, the strike in question  was  thoroughly unjustified.   It  was  the Management’s case  that  it  had participated in the conciliation proceedings and when  those proceedings  failed, the question of referring  the  dispute was  pending before the Government.  The workmen could  have made  a request to the Government to refer the  dispute  for adjudication  and,  therefore,  the  strike  could  not   be justified.   Support  for  this  was  also  sought  by   the Management  from  the  observations made by  this  Court  in Chandra alai Estate Emakulam v. Workmen. In that case,  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.  This  Court  held that the said decision did not support the Management  since

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the  strike was not directly in connection with  the  demand for  bonus  but was as a protest  against  the  unreasonable attitude of the Management in boycotting the conference held on  23-11-1961 by the Labour Minister of the State.   Hence, this  Court  held that the strike was not  unjustified.   In view  of the fact that there was no breach of Section  23(a) and  in  view  also  of  the  fact  that  in  the  aforesaid circumstances,  the  strike was not unjustified,  the  Court held  that the factory workers were entitled for  wages  for that  day  and  the  Tribunal’s award  in  that  behalf  was justified. 14. In Crompton Greaves Ltd.2 the facts were that on  27-12- 1967, the appellant-Management intimated the workers’  Union its  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. Thereupon, the Assistant Labour 4 (1960) 3 SCR 451 : AIR 1960 SC 902 :(1960) 2 LLJ 243 584 Commissioner   arranged   a   joint   conference   of    the representatives  of  the  Union and of the  Company  in  his office,  with a view to explore the avenues for an  amicable settlement.   Two conferences were accordingly held on  5-1- 1968  and 9-1-1968 in which both the  parties  participated. As a result of these conferences, the Company agreed to hold talks with the representatives of the Union at its  Calcutta office  on  the morning of 10-1 - 1968.  The talk  did  take place  but no agreement could be arrived at.  The  Assistant Labour  Commissioner  continued to use his good  offices  to bring  about  an amicable settlement through  another  Joint conference  which  was  scheduled  for  12-1-1968.   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 on 1-3-1968. By a subsequent order dated 13-12-1968, the State Government also  referred  the issue of the  workmen’s  entitlement  to wages  for  the  strike  period,  for  adjudication  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". 15. 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.  In paragraph 4  of  the judgment, this Court observed as follows: (SCC pp. 157-58)               "4.  It  is  well settled  that  in  order  to               entitle the workmen to wages for the period of               strike, the strike should be legal as well  as               justified.  A  strike is legal if it does  not               violate any provision of the statute.   Again,

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             a  strike  cannot be said  to  be  unjustified               unless   the  reasons  for  it  are   entirely               perverse    or   unreasonable.    Whether    a               particular  strike was justified or not  is  a               question of fact which has to be judged in the               light  of the facts and circumstances of  each               case.  It is also well settled that the use of               force or violence or acts of sabotage resorted               to by the workmen during a strike  disentitles               them to wages for the strike period. 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 585 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. 16.  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. 17.  We may now refer to the other relevant decisions on the subject. 18.  In  Kairbetta Estate, Kotagiri v.  Rajamanickam5,  this Court observed as follows:               "Just as a strike is a weapon available to the               employees   for  enforcing  their   industrial               demands,  a lockout is a weapon  available  to               the employer to persuade by a coercive process               the employees to see his point of view and  to               accept  his demands.  In the struggle  between               capital  and labour, the weapon of  strike  Is               available  to labour and is often used by  it,               so  is the weapon of lockout available to  the               employer  and can be used by him.  The use  of               both  the  weapons by the  respective  parties               Must,  however,  be subject  to  the  relevant               provisions of the Act.  Chapter V which  deals               with  strikes and lockouts clearly brings  out               the antithesis between the two weapons and the               limitations subject to which both of them must               be exercised." 19.  In  Chandra malai Fstate4 the facts were that  on  9-8-

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1955,  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.  On 29-8-1955, the Labour Officer, Trichur, who had  in the meantime been apprised of the situation both  by the  Management  and  the  workers’  Union,  advised  mutual negotiations  between the representatives of the  Management and the workers.  Ultimately, the matter was recommended  by the Labour Officer to the Conciliation Officer, Trichur  for conciliation.  The Conciliation Officer’s efforts proved ill vain.  The last meeting for conciliation was held on  30-11- 1955.  On the following 5 (1960) 3 SCR 371 : AIR 1960 SC 893 :(1960) 2 LLJ 275 586 day, the Union gave a strike notice and the workmen went  on strike  w.e.f.  9-12-1955.  The strike  ended  on  5-1-1956. Prior to this, on 5-1-1956, the Government had referred  the dispute with regard to five of the demands for  adjudication to the Industrial Tribunal, Trivandrum.  Thereafter, by  its order  dated 11-6-1956, the dispute was withdrawn  from  the Trivandrum Tribunal and referred to the Industrial Tribunal, Ernakulam.   By  its award dated  19-10-1957,  the  Tribunal granted  all the demands of the workmen.  The appeal  before this  Court  was  filed by the Management on  three  of  the demands.   One of the issues was: "Are the workers  entitled to get wages for the period of the strike?".  On this issue, before the Tribunal, the workmen had pleaded that the strike was justified while the Management contended that strike was both  illegal and unjustified.  The Tribunal had recorded  a finding  that both the parties were to blame for the  strike and  ordered the Management to pay the workers 50% of  their total emoluments for the strike period. 20.  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.   The Court then observed as under :               "The main demands of the Union were about  the               cumbly  allowance and the price of  rice.   As               regards  the  cumbly allowance they  had  said               nothing  since 1949 when it was first  stopped               till  the  Union raised it on  9-8-1955.   The               grievance  for collection of excess  price  of               rice was more recent but even so it was not of               such  an urgent nature that the  interests  of               labour would have suffered irreparably if  the               procedure prescribed by law for settlement  of               such disputes through Industrial Tribunals was               resorted to.  After all it is not the employer               only  who suffers if production is stopped  by               strikes.   While on the one hand it has to  be               remembered  that  strike is a  legitimate  and               sometimes  unavoidable weapon in the hands  of               labour  it  is equally important  to  remember               that  indiscriminate  and hasty  use  of  this               weapon should not be encouraged.  It will  not               be right for labour to think that for any kind

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             of  demand  a  strike can  be  commenced  with               impunity without exhausting reasonable avenues               for  peaceful  achievement of  their  objects.               There may be cases where the demand is of such               an urgent and serious nature that it would not               be  reasonable to expect labour to  wait  till               after   asking  the  Government  to   make   a               reference.  In such cases, strike even  before               such  a  request  has been made  may  well  be               justified.  The present is not however one  of               such cases.  In our opinion the workmen  might               well have waited for some time               587               after   conciliation  efforts  failed   before               starting a  strike and in the meantime to have               asked  the  Government to  make  a  reference.               They  did not wait at all.   The  conciliation               efforts failed on 30-11-1955, and on the  very               next day the Union made its decision on strike               and  sent  the notice of the  intended  strike               from the 9-12-1955, and on the 9-12-1955,  the               workmen actually struck work.  The  Government               appear to have acted quickly and referred  the               dispute  on 3-1-1956.  It was after this  that               the  strike was called off.  We are unable  to               see how the strike in such circumstances could               be held to be justified." 21.  In  India  General Navigation and Railway Co.  Ltd.  v. Workmen6  this  Court while dealing with the  issues  raised there, observed as follows:               "In the first place, it is a little  difficult               to  understand  how a strike in respect  of  a               public  utility  service,  which  is  clearly,               illegal,   could   at   the   same   time   be               characterised as ’perfectly justified’.  These               two conclusions cannot in law coexist. The law               has made a distinction    between   a   strike               which is illegal and one which is not, but  it               has  not  made  any  distinction  between   an               illegal  strike  which  may  be  said  to   be               justifiable and one which is not  justifiable.               This distinction is not  warranted by the Act,               and  is wholly misconceived, specially in  the               case of employees in a public utility service.               Every one participating in an  illegal strike,               is liable to be dealt with departmentally,  of               course,   subject    to  the  action   of   the               Department   being   questioned   before    an               Industrial      Tribunal,   but  it   is   not               permissible to characterise an illegal  strike               as    justifiable.   The  only   question   of               practical  importance which may arise in   the               case  of an illegal strike, would be the  kind               or quantum of   punishment,   and   that,   of               course, has to be modulated in accordance with               the  facts  and circumstances  of  each  case.               Therefore, the tendency to     condone    what               has  been declared to be illegal  by  statute,               must  be  deprecated, and it must  be  clearly               understood  by  those  who  take  part  in  an               illegal   strike   that  thereby   they   make               themselves liable to be dealt with  by   their               employers.   There   may   be   reasons    for               distinguishing the case of those who may  have               acted  as mere dumb driven cattle  from  those

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             who have taken an active part in fomenting the               trouble and instigating workmen to join such a                             strike, or have taken recourse to violence." 22.  We may now refer to the decision of this Court  in  the TS. Kelawala   case3  where allegedly a different  view  has been  taken  from the one taken in   the  aforesaid  earlier decisions  and in particular in Churakulam Tea  Estate1  and Crompton Greaves2 cases. 23.  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 6 (1960) 2 SCR 1  AIR 1960 SC 219 :(1960) 1 LLJ 13 590 employees  of  the other Banks.  Admittedly,  the  employees struck  work  when the conciliation proceedings  were  still pending.   Further, the question whether the  implementation of the said agreements was of such an urgent nature as could not have waited the outcome of the conciliation  proceedings and if necessary, of the adjudication proceedings under  the Act,  was  also  a matter which had to  be  decided  by  the industrial  adjudicator to determine the  justifiability  or unjustifiability of the strike. 27.It has to be remembered in this connection that a  strike may be illegal if it contravenes the provisions of  Sections 22, 23 or 24 of the Act or of any other law or of the  terms of  employment  depending  upon  the  facts  of  each  case. Similarly,   a  strike  may  be  justified  or   unjustified depending   upon  several  factors  such  as   the   service conditions  of  the workmen, the nature of  demands  of  the workmen, the cause which led to the strike, the urgency  of the cause or the demands of the workmen, the reason for  not resorting to the dispute resolving machinery provided by the Act  or the contract of employment or the service rules  and regulations   etc.    An  enquiry  into  these   issues   is essentially  an enquiry into the facts which in  some  cases may require taking of oral and documentary evidence.   Hence such  an enquiry has to be conducted by the machinery  which is  primarily  invested with the jurisdiction  and  duty  to investigate  and resolve the dispute.  The machinery has  to come to its findings on the said issue by examining all  the pros  and cons of the dispute as any other  dispute  between the employer and the employee. 28.Shri Garg appearing for the employees did not dispute the proposition  of law that notwithstanding the fact  that  the strike  is  legal,  unless it is  justified,  the  employees cannot  claim  wages  for the strike  period.   However,  he contended that on the facts of the present case, the  strike was  both legal and justified.  We do not propose to  decide the  said issues since the proper forum for the decision  on the said issues in the present case is the adjudicator under the Act. 29.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.  It is abuse  by the labour of their economic power to bring the employer  to see and meet their viewpoint over the dispute between  them. In addition to the total cessation of work, it takes various

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forms  such  as working to rule, go slow,  refusal  to  work overtime when it is compulsory and a part of the contract of employment,  "irritation  strike"  or staying  at  work  but deliberately doing everything wrong, "running-sore  strike", i.e.,  disobeying the lawful orders, sit-down,  stay-in  and lie down strike etc. etc.  The cessation or stoppage of work 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 591 also  provided  a  machinery  for  peaceful   investigation, settlement,  arbitration  and adjudication of  the  disputes between  them.   Where such industrial  legislation  is  not applicable, the contract of employment and the service rules and regulations many times, provide for a suitable machinery for  resolution  of  the  disputes.  When  the  law  or  the contract  of employment or the service rules provide  for  a machinery  to  resolve  the dispute,  resort  to  strike  or lockout as a direct action is prima facie unjustified.  This is, particularly so when the provisions of the law or of the contract  or  of  the  service  rules  in  that  behalf  are breached.  For then, the action is also illegal. 30.The  question  whether a strike or lockout  is  legal  or illegal  does  not present much  difficulty  for  resolution since  all  that is required to be examined  to  answer  the question is whether there has been a breach of the  relevant provisions.   However,  whether the action is  justified  or unjustified has to be examined by taking into  consideration various  factors  some of which are indicated  earlier.   In almost all such cases, the prominent question that arises is whether  the dispute was of such a nature that its  solution could not brook delay and await resolution by the  mechanism provided under the law or the contract or the service rules. The  strike or lockout is not to be resorted to because  the party  concerned  has  a superior bargaining  power  or  the requisite  economic  muscle  to compel the  other  party  to accept  its  demand.  Such indiscriminate use  of  power  is nothing but assertion of the rule of "might is right".   Its consequences  are  lawlessness,  anarchy and  chaos  in  the economic activities which are most vital and fundamental  to the  survival of the society.  Such action, when  the  legal machinery  is available to resolve the dispute, may be  hard to  justify.   This  will  be particularly  so  when  it  is resorted  to  by the section of the society which  can  well await  the  resolution  of  the  dispute  by  the  machinery provided  for the same.  The strike or lockout as  a  weapon has  to  be  used  sparingly for  redressal  of  urgent  and pressing  grievances  when no means are  available  or  when available  means have failed, to resolve it.  It has  to  be resorted  to,  compel the other party to the dispute to  see the  justness  of the demand.  It is not to be  utilised  to work  hardship to the society at large so as  to  strengthen the bargaining power.  It is for this reason that industrial legislation  such as the Act places additional  restrictions on strikes and lockouts in public utility services. 31.With the emergence of the organised labour,  particularly in public undertakings and public utility services, the  old balance  of  economic power between the management  and  the workmen   has  undergone  a  qualitative  change   in   such undertakings.    Today,  the  organised  labour   in   these institutions  has  acquired even the power  of  holding  the society  at  large  to ransom,  by  withholding  labour  and

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thereby  compelling  the  managements to give  in  on  their demands   whether  reasonable  or  unreasonable.   What   is forgotten many times, is that as against the employment  and the service conditions available to the organised labour  in these  undertakings,  there  are  millions  who  are  either unemployed,   underemployed   or  employed  on   less   than statutorily  minimum  remuneration.   The  employment   that workmen get and the profits that the employers earn are both generated by the utilisation 592 of  the  resources of the society in one form or  the  other whether it is land, water, electricity or money which  flows either  as share capital, loans from financial  institutions or  subsidies  and  exemptions from  the  Governments.   The resources  are  to  be used for the  well-being  of  all  by generating  more  employment  and  production  and  ensuring equitable  distribution.  They are not meant to be used  for providing employment, better service conditions and  profits only  for  some.   In this task, both the  capital  and  the labour  are to act as the trustees of the said resources  on behalf of the society and use them as such.  They are not to be wasted or frittered away by strikes and lockouts.   Every dispute   between  the  employer  and  the   employee   has, therefore,  to take into consideration the third  dimension, viz., the interests of the society as a whole,  particularly the  interest of those who are deprived of their  legitimate basic economic rights and are more unfortunate than those in employment and management.  The justness or otherwise of the action of the employer or the employee has, therefore, to be examined  also on the anvil of the interests of the  society which  such  action tends to affect.  This is  true  of  the action  in  both  public  and  private  sector.   But   more imperatively so in the public sector.  The management in the public  sector  is  not the capitalist  and  the  labour  an exploited  lot.   Both  are paid  employees  and  owe  their existence  to the direct investment of public  funds.   Both are expected to represent public interests directly and have to promote them. 32.We  are,  therefore, more than satisfied  that  the  High Court  in  the  present  case had  erred  in  recording  its findings  on  both  the  counts,  viz.,  the  legality   and justifiability, by assuming jurisdiction which was  properly vested in the industrial adjudicator.  The impugned order of the High Court has, therefore, to be set aside. 33.Hence  we allow the appeal.  Since the dispute  has  been pending  since 1989, by exercising our power  under  Article 142 of the Constitution, we direct the Central Government to refer the dispute with regard to the deduction of wages  for adjudication  to  the appropriate authority  under  the  Act within  eight  weeks  from today.   The  appeal  is  allowed accordingly with no order as to costs. CA No. 2689 of 1989 and CA Nos. 2690-92 of 1989 34.In these two matters, arising out of a common Judgment of the  High  Court,  the  question  involved  was   materially different, viz., whether when the employees struck work only for  some hours of the day, their salary for the  whole  day could  be  deducted.  As in the case of TS.   Kelawala3,  in this case also the question whether the strike was justified or  not was not raised.  No argument has also been  advanced on behalf of the employees before us on the said issue.   In the  circumstances, the law laid down by this Court  in  TS. Kelawala  , with which we concur, will be  applicable.   The wages of the employees for the whole day in question,  i.e., 29-12-1977  are  liable to be deducted.   The  appeals  are, therefore,  allowed  and the impugned decision of  the  High

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Court is set aside.  There will, however, be no order as  to costs. 607