Bombay High Court
Hariganga Security Services Ltd. vs Member, Industrial Court, Maharashtra ... on 21 March, 1990
Equivalent citations: (1991)IILLJ203BOM
JUDGMENT Deshpande, J.
1. Writ Petition No. 1858 of 1987 filed by the employer, Hariganga Security Services Limited, Nagpur, is directed against the order reinstatement of respondent No. 2 passed by the Industrial Court while setting aside the order of the Labour Court, holding that the respondent No. 2 had committed an unfair labour practice. Writ Petition No. 288 of 1987 is filed by Subhash Meshram an employee against Hariganga Security Services Limited against the order passed by the Industrial Court refusing to award back wages while ordering his reinstatement.
2. It would be convenient to refer to the parties as arrayed in Writ Petition No. 1858 of 1987. The respondent No. 2 Subhash Meshram was employed as a security guard with the petitioner from December 1983. He was also the Secretary of the Union of Workers of Hariganga Security Services Limited. A call for a strike was given by the Union and the strike commenced from 23rd October, 1984. At the intervention of the Deputy Commissioner of Labour, the strike was withdrawn on 9th November, 1984 and the employees reported for duty on 10th November, 1984. The petitioner applied to the Labour Court for declaring the strike illegal and it was numbered as Reference No. 462 of 1984. The second Labour Court held the strike to be illegal on account of contravention of Section 24(1)(a) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("P.U.L.P. Act" for short). After these proceedings were over, the respondent No. 2 came to be charge-sheeted on account of illegal strike on 10th May, 1985 under clause 24(b) of the Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946. The Enquiry Officer found the respondent No. 2 guilty of an unfair labour practice under clause 24(b) of the Model Standing Orders and in pursuance thereof the petitioner dismissed the respondent No. 2 on 2nd August, 1985. The respondent No. 2 challenged his dismissal before the Labour Court in P.U.L.P. Case No. 404 of 1985. The Labour Court dismissed the complaint holding that the enquiry was fair and proper and no unfair labour practice was committed by the petitioner. A revision application was preferred to the Industrial Court being Revision Application No. 45 of 1986. The Industrial Court by the order dated 14th October, 1986 took the view that as the strike was withdrawn by the union, albeit before the declaration that it was illegal, in view of the provisions of sub-section (5) of Section 25, the strike would be deemed not to be illegal for the purposes of the Unfair Labour Practices Act. The Industrial Court found that the charge framed against the respondent No. 2 resting on the illegal strike could not, therefore, be supported. Holding that the dismissal was bad the Industrial Court directed reinstatement of the respondent No. 2, but refused to award back wages.
3. The employer Hariganga Security Services has challenged the order of reinstatement passed by the Industrial Court by filing Writ Petition No. 1858 of 1987 while the denial of back wages has been challenged by the employee Subhash by Writ Petition No. 288 of 1987.
4. When these petitions came up before the learned Single Judge, he took the view that one of the basis aspects was whether the strike should be declared as illegal under Section 25(2) before the departmental proceedings for going on illegal strike-a misconduct under the Standing Orders - can be taken and there was divergence of approach on this point because there were two Single Bench decisions in Billion Plastics Pvt. Ltd. v. Dyes and Chemical Workers Union (1983 Mh. L.J. 572,) and Mafatlal Engineering v. Association of Engineering Workers (1983 L.I.C. 777) holding that it was not necessary that the strike should be declared illegal before the departmental proceedings could be taken while in a later Single Bench decision in Ajabrao v. Y. A. Khatke (1986-II-LLJ-430), it was held that it was necessary. In the view of the learned Single Judge before whom the matters came up, the ultimate question was whether, if the illegal strike is withdrawn, the employer is precluded from taking disciplinary action under the Standing Orders. He, therefore, directed the matter to be placed before the Hon'ble Chief Justice for referring it to a Division Bench and that is how it has come before us.
5. For understanding the nature and scope of the deeming provisions of sub-section (5), it is necessary to set out what Section 25 of the P.U.L.P. Act, enacts :
"25(1) Where the employees in any under-taking have commenced a strike, the State Government or the employer of the undertaking may make reference to the Labour Court for a declaration that such strike is illegal.
(2) Where the employer of any undertaking has proposed a lock-out or has commenced a lock-out, the State Government or the recognised union or where there is no recognised union, any other union of the employees in the undertaking may make a reference to the Labour Court for a declaration whether such lock-out will be illegal.
Explanation :- For the purposes of this Section recognised union includes a representative union under the Bombay Act. (3) No declaration shall be made under this Section, save in the open court. (4) The declaration made under this Section, shall be recognised as binding, and shall be followed in all proceedings under this Act. (5) 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 purpose of this Act, be deemed to be illegal under this Act."
6. The controversy which requires to be resolved in the present case lies in a narrow compass and it is not covered by any of the decisions to which reference was made, the crucial question being whether it is necessary for the fiction created by sub-section (5) of Section 25 to operate that the withdrawal of the strike or lock-out should be effected within 48 hours after the declaration that the strike is illegal, and not before such declaration is made. The contention of the employer is that the earlier withdrawal of the strike would not enable the employee to derive the benefit of the fiction created by sub-section (5), while according to the employee the period of 48 hours from the declaration only sets down the outer limit for withdrawing the strike and if the strike is withdrawn at any time after it has commenced, but before the expiry of 48 hours after the declaration, the fiction would operate and the strike shall not be deemed to be illegal. It is urged resting on the latter proposition that the departmental proceedings taken against the employee cannot continue as the employer could not have been proceeded against for misconduct under clause 24(b) of the Model Standing Orders as clause 24(b) of the Model Standing Orders requires going on illegal strike or abetting, inciting, instigating or acting in furtherance thereof.
7. The subject of illegal strikes and lock-outs is covered by Chapter V of the P.U.L.P. Act. Section 24 defines illegal strikes and lock-outs for the purposes of the Act and the preamble makes it clear that the Act is to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings, to state their rights and obligations; to confer certain powers on unrecognised unions; to provide for declaring certain strikes and lock-outs as illegal strikes and lock-outs; to define and provide for the prevention of certain unfair labour practices; to constitute courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid. The provisions such as those is Section 25 of the Act are not to be found either in the Industrial Disputes Act or Bombay Industrial Relations Act. From the statement of objects and reasons it is clear that what was contemplated was development of strong, independent and responsible unions and an orderly, rational environment free from unfair labour practices as the pre-requisites of effective collective bargaining, and that there was no systematic law to determine and penalise unfair labour practices, and the Tripartite Committee appointed in February 1968 had recommended that unfair labour practices could not be considered in isolation and away from the concept of collective bargaining and for removing obstacles in the way of such bargaining. It was therefore, necessary to systematise the law relating to unfair labour practices on sound and scientific lines. In view of this the Government considered it necessary to constitute courts-an independent machinery - to fulfill the dual purpose of according recognition to union and of enforcing provisions relating to unfair labour practices. Section 25 of the Act, therefore, has to be considered as a part of the machinery for maintaining and promoting industrial peace. The provisions of Section 25 were designed evidently for the purpose of getting a declaration that the strikes and lock-outs which were in contravention of the provisions of the Act are illegal and after such a declaration is made for affording an opportunity to the erring employer or the employees to rectify the error with the promise that thereupon the illegality attaching to the action already taken, would be removed. It is in this back-ground that sub-section (5) of Section 25 requires to be considered.
8. The submission of Shri R. B. Puranik, the learned counsel for the employer, was that if it were to be held that the strike could be withdrawn at any time before the declaration, it would lead to an absurdity and if the advantage of the deeming provision of sub-section (5) were to be conferred even in that contingency, it would lend immunity to all sorts of illegal strikes or lock-outs and this could not have been within the contemplation of the Legislature. He urged that if such an interpretation were to be placed, no strike could ever be held to be illegal. This contention, however, overlooks that under sub-section (5) any withdrawal of the strike of lockout after the expiry of forty-eight hours of such declaration shall continue to be illegal, once a declaration about the illegality is made. It was then submitted that the deeming provision must be limited to the subject for which it was enacted and the scope of the deeming provision cannot be extended beyond what the Legislature had provided. The question, however, is what exactly was the period prescribed by the Legislature in this respect. To construe the expression "within forty-eight hours of such declaration" as covering only the period from the date of the declaration until expiry of forty-eight hours would be unduly restricting the scope of the provision considering the purpose for which it was made and the object that was sought to be achieved. Sub-section (1) of Section 25 begins with the words "Where the employees in any undertaking have commenced a strike and it enables the State Government or the employer to make a reference to the Labour Court for a declaration that such strike is illegal. The declaration obviously would be in respect of the strike which has commenced and would cover the whole of the period upto the date of the decision of the Labour Court. Similar would be the position with regard to the lock-out covered by sub-section (2). The declaration would operate on the strike or lock-out from the commencement of the strike or lock-out and it is not that any transformation is brought about by the declaration. Sub-section of (5) of Section 25 does not expressly state that withdrawing the strike must be accomplished only after the declaration is made and before the expiry of forty-eight hours. If such were the intention of the Legislature, it would be reasonable to except the Legislature to have said so while enacting sub-section (5). Considering the purpose for which the provision has been brought into the statute book, we find that such a narrow construction cannot be put on sub-section (5).
9. In The State of Bombay v. Pandurang 1953 S.C.R. 773, it was observed as follows :
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Exparte Walton : In re Levy (17 Ch.D. 746 at p. 756). If the purpose of the statutory fiction mentioned in Section 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court In East End Dwellings Co Ltd. v. Finsbury Borough Council 1952 A.C. 109, Lord Asquith while dealing with the provisions of the Town and Country Planning Act, 1947, made reference to the same principle and observed as follows :
"IF you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ..... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".
Having regard to the language in which sub-section (5) of Section 25 is couched, we find it difficult to infer any limitation of time from it as has been urged on behalf of the employer and since no earlier stage has been indicated therein, full effect must be given to the language used and the provision must be regarded as covering the entire period from the commencement of strike until expiry of forty-eight hours after such declaration. It is difficult to visualise that those who was their error even before the declaration was made by the Labour Court, and wanted to rectify their error even before the declaration was made by the Labour Court, and wanted to rectify their error and resume duty or start the work of establishment, should be punished because they did not continue the strike or lock-out until the Labour Court made a declaration that the strike or lock-out was illegal. As the learned counsel for the respondent No. 2 rightly pointed out, placing such construction would mean that if a settlement is reached during the pendency of the proceedings in the Labour Court under section 25, the employer or the employees must wait until a declaration is made by the Labour Court holding the strike or the lock-out to be illegal. Such a position in our view would not be conducive to bringing about industrial peace and could not have been contemplated by the Legislature. We, therefore, hold that the earlier withdrawal of the strike by the Union would not take the strike out of the purview of the deeming provisions of sub-section (5) of Section 25. The consequence in the present case was that by withdrawing this strike earlier, by virtue of the deeming provision, the strike must be held not to have been illegal. We, therefore, agree with the view taken by the Industrial Court on this point.
10. Since the charge-sheet under item 24(b) of the Model Standing Orders rested on the alleged illegal strike, the very basis of the departmental action against the respondent No. 2 was taken away and the respondent No. 2 was entitled to reinstatement as found by the Industrial Court.
11. That takes us to the other question raised in Writ Petition No. 288 of 1987. Since the dismissal of the petitioner was unjustified, he would normally be entitled to back wages, as laid down in M/s. Hindustan Tin Works Pvt. Ltd. (1978-II-LLJ-474). Ordinarily, workman those service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. There was no suggestion on behalf to the petitioner that respondent No. 2 was gainfully employed during this period. The only ground raised before the Industrial Court was of loss of confidence and that was negatived by the Industrial Court observing that no action was taken against 64 other workers who had also proceeded on strike and the plea of loss of confidence therefore, could not be sustained. We find that he Industrial Court went wrong in observing that it is not desirable that the respondent No. 2 should be given back wages as that would amount to a reward for his illegal activities. We have already referred to the position that the legal fiction will have to be carried to its logical conclusion and there is no justification for branding the action of the respondent No. 2 as participation in an illegal strike, for depriving him of the back wages.
12. In the result, we see no merit in Writ Petition No. 1858 of 1987 and discharge the rule issued in that case. The rule is made absolute in Writ Petition No. 288 of 1987 by modifying the order in respect of the back wages in that there shall be a direction to pay back wages to the petitioner therein from the date of his dismissal upto the date of his reinstatement i.e., from 2nd August, 1985 to 4th August, 1986. In the circumstances there will be no order as to costs. Shri Puranik for the employer seeks leave to appeal to the Supreme Court. Leave refused.