R.J. Kochar, J.@mdashThe petitioner Union and its General and Joint Secretaries are aggrieved by the impugned Judgment and Order dated 30-9-1995 passed by the Presiding Officer of the 4th Labour Court, Thane whereby she declared the strike commenced by the petitioners from 14.30 hrs. on 10-7-1995 as illegal till 19-8-1995. The said declaration of the illegal strike was made in the open Court on the date of the Judgment.
2. The respondent company filed a Reference u/s 25(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 seeking declaration that the employees of the company had commenced and continued an illegal strike from 10-7-1995 u/s 24(1)(a) and (c) of the Act. Though initially the petitioners did not admit that the employees had gone on strike, it is now an admitted fact that the strike commenced on and from 10-7-1995 as was alleged by the Company. During the pendency of the Reference the petitioners gave a notice of strike on 17-7-1995 that the employees would go on strike after 14 days. It appears that the petitioners contested the Reference by filing their written statement before the Labour Court. It further appears that on 27-7-1995 the said notice of strike was received by Conciliation Officer. On 4-8-1995 the Conciliation Officer admitted the dispute in conciliation. It further appears that on 19-8-1995 the parties reached an amicable settlement whereunder it was inter alia agreed as under :
4. The Committee members on behalf of the workers assure the management their fullest co-operation in respect of production, normal and peaceful working, after the workers will resume their duty.
5. The Reference (ULP) No. 8 of 1995 shall proceed and the parties should expedite the final disposal of the same. Whatever may be the outcome in the said matter, the management assure the union in writing that they will not take any proceedings under the provisions of M.R.T.U. & PULP Act, 1971 or any other Act to get the union de-recognised. The management also shall not take any action against any employee if the strike is declared illegal by this Hon''ble Court.
The said settlement was filed before the Labour Court. It was clearly averred in the settlement that all the workmen shall resume their duties in their respective shifts on 21-8-1995. It was further agreed that company will not victimize any workers for participating in strike. It further appears that in view of the said settlement the strike was withdrawn on and from 21-8-1995.
3. Shri Patel the learned Advocate for the petitioners has taken a serious exception to the Judgment and Order of the Labour Court granting declaration to the Company that the strike was illegal for the period from 10-7-1995 to 19-8-1995. According to him, no such declaration could be granted by the Labour Court once the strike was withdrawn before such declaration u/s 25 of the Act. Shri Patel further submitted that at the most the strike could be declared illegal from 10-7-1995 to 17-7-1995 but not upto 19-8-1995. Shri Patel submits that as the Union had given strike notice on 17-7-1995, the Union could not resort to strike from 17-7-1995 during the period of 14 days i.e. upto 31-7-1995 but thereafter the strike could not be termed as illegal. He further submitted that after the 14 days period from 10-7-1995 the strike ceased to be an illegal strike.
4. Shri Nerlekar, the learned Advocate for the respondent company supported the Judgment of the Labour Court. According to the learned advocate, the strike commenced and continued from 10-7-1995 was in contravention of Section 24(1) of the Act as there was no strike notice given by the Union. Shri Nerlekar pointed out that the illegal strike was commenced and continued upto 19-8-1995 and therefore, it was illegal for the entire period. He further submitted that as the strike notice was given on 17-7-1995 there could not be any strike during the period for 14 days from 17-7-1995 to 31-7-1995. The strike which was commenced on 10-7-1995 continued even during the period of the strike notice and therefore, the said strike cannot be said to be legal merely because the Union had given subsequently notice of strike on 17-7-1995. Shri Nerlekar also pointed out that the Conciliation Officer had received strike notice on 27-7-1995 and the conciliation proceedings were deemed to have been commenced from the date of receipt of such notice by Conciliation Officer and the strike continued even after the Conciliation proceeding commenced on 27-7-1995, the continuation of the strike was illegal even u/s 24(1)(c) of the Act. According to Shri Nerlekar, considered from any angle and considering any date, the strike which commenced on 10-7-1995 and which continued upto 19-8-1995 was rightly declared illegal by the Labour Court though it was withdrawn on 19-8-1995. According to Shri Nerlekar, there was no prohibition or bar of any nature on the labour Court to grant declaration u/s 25(1) of the Act that the strike was illegal.
5. Shri Patel has relied on the following two judgments of this Court : 1. 1988 MhLJ 832 - Maharashtra General Kamgar Union and Ors. v. Balkrishna Pen Pvt. Ltd. and Ors. 2. 1990 MhLJ 775 - Hariganga Security Services Ltd. v. Member, Industrial Court, Maharashtra and Ors.
6. I do not agree with the submissions of Shri Patel that the Labour Court ceases to have jurisdiction u/s 25 of the Act to declare the strike to be illegal, if such strike was withdrawn during the pendency of the proceedings and before grant of such declaration by the Labour Court. The jurisdiction of the Labour Court u/s 25 of the Act is invoked by the parties for declaration of a strike or a lockout as illegal, if such a strike or lock out was commenced or continued in contravention of Section 24. Section 24 defines an illegal strike positively and exhaustively. Significantly the definition is not an inclusive definition. It has enumerated eight contingencies or the conditions of a strike being illegal. One of them is that a strike which is commenced or continued without giving to the employer a notice of strike in the prescribed format or within 14 days from the giving of such notice. Similarly there is one more contingency which is relevant for our purpose and that is a strike which is commenced or continued during the pendency of conciliation proceeding under the Bombay Act or the Central Act and seven days after the conclusion of such proceedings in respect of matters covered by the notice of strike. u/s 25 the Labour Court gets jurisdiction on the motion made by the employer that the employees proposed to go on strike. Even if the employees propose to go on strike the employer can move the Labour Court for declaration that the proposal of his employees to go on strike should be declared as illegal. Secondly if the employees actually commenced the strike the employer can move the Labour Court for declaration that the commencement of the strike was illegal. It is therefore clear that the Labour Court has jurisdiction to declare even a proposal to go on strike as illegal and also the commencement of strike as illegal on the reference made by the employer. We are concerned with the jurisdiction of the labour court to entertain and try such reference. However, the Labour Court may or may not grant such declaration.
7. The Point urged by Shri Patel has hardly any merit even to attract at the first blush, as some times some points do have such attraction-feature. According to the learned Advocate, the Labour Court u/s 25 of the Act ceases to have jurisdiction to decide the Reference and to grant a declaration that the strike was illegal as soon as the employees/ the Union withdraw the strike during the pendency of the Reference before its final decision/declaration. Shri Patel has heavily relied on the Hariganga Judgment (supra) of our High Court to substantiate his point. His reliance on the said ruling is wholly misplaced as the Division Bench was not seized of the point which is being canvassed by Shri Patel. The Division Bench was not deciding the issue of jurisdiction of the Labour Court after withdrawal of the strike but the point considered and decided is that "the earlier withdrawal of the strike by the Union would not take the strike out of the purview of the deeming provision 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 to have been illegal." It was a case of a workman who was dismissed on the ground of the alleged misconduct under S.O. 24(b) of the Model Standing Orders on account of the illegal strike. It appears that the illegal strike came to be withdrawn before it was declared as illegal u/s 25 of the Act in the Reference filed by the employer. It was, therefore contended successfully by the workman that in view of the withdrawal of the strike before the declaration, the stigma of illegality is wiped out under the deeming provision of Sub-section (5) of Section 25. The Hon''ble Division Bench accepted the said submissions on behalf of the workman and observed as under:
"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 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 visualize that those who saw 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 the establishment, should be punished because they did not continue the strike or lockout until the Labour Court made a declaration that the strike or lockout was illegal. As the learned counsel for the respondent No. 2 rightly pointed out, placing out, placing such a construction would mean that if a settlement is reached during the pendency of the proceedings in the Labour Court u/s 25, the employer or the employees must wait until a declaration is made by the Labour Court holding the strike or the lockout 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."
While construing the deeming provision the Hon''ble Judges have observed in para 8 of the judgment as under :
8....... ''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 the 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 (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)."
8. Chapter V of the MRTU & PULP Act independently provides for "illegal Strikes and Lock-outs". Both the terms are exhaustively defined u/s 24 of the MRTU & PULP Act. Both these definitions are bodily borrowed and lifted from the other State Act, viz. a meticulously drafted Bombay Industrial Relations Act, 1946. Section 25 provides for a remedy to the affected parties restrictively i.e. the State Government or the Recognised Union or in its absence any other union in the case of an illegal lock-out and the State Government or the employer in the case of an illegal strike. It appears that individual employees are deliberately kept out under this chapter. These two sections or the whole chapter V of the Act is a complete code to deal with the aforesaid two kinds of situations though we find certain consequential effects elsewhere in the Act. For the present purpose I reproduce the relevant portion of Section 24(1)(a) and (c) and Section 25 of the MRTU & PULP Act, in full, below :
24. Illegal strike and lock-out. -- (1) "illegal strike" means a strike which is commenced or continued -
(a) without giving to the employer notice of strike in the prescribed form, or within fourteen days of the giving of such notice;
(b) ...................
(c) during the pendency of conciliation proceeding under the Bombay Act or the Central Act and seven days after the conclusion of such proceeding in respect of matters covered by the notice of strike.
25. Reference of Labour Court for declaration whether strike or lock-out is illegal. -- (1) Where the employees in any undertaking have proposed to go on strike or have commenced a strike, the State Government or the employer of the undertaking may make a reference to the Labour Court for a declaration that such strike is illegal.
(2) Where the employer of any undertaking has proposed to lock-out or has commenced a lock-out, the State Government or the recognized union or, where there is no recognized 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.
(3) No declaration shall be made under this section, save in the open Court.
(4) The declaration made under this section, shall be recognized as binding, and shall be followed in all proceeding 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 purposes of this Act, be deemed to be illegal under this Act.
9. There is no manner of doubt and scope for interpretative skill in these definition clauses. Any strike which is commenced or continued without giving to the employer notice of strike in the prescribed form, or within 14 days of the giving of such notice would be an illegal strike. Similarly a strike which commenced or continued during the pendency of conciliation proceeding under the B.I.R. Act or the I.D. Act and seven days after the conclusion of such proceeding in respect of matters covered by the notice of strike would also be vitiated as illegal. If any one of the conditions u/s 24(1) is violated the strike would be illegal as contemplated and defined under this provision. Even lock-out in similar circumstances would meet with the same fate. The law, thus far, upto Section 25(4) is clear and absolute and there is no escape route to avoid to be hit by illegality. Section 25(5) however, gives a great relief of condonation of the harsh consequences of the illegality if the illegal strike or lock-out is withdrawn within 48 hours from the declaration granted by the Labour Court. In that case the illegal strike or lock-out shall not be deemed to be illegal for the purposes of this Act. u/s 25(5) the fiction is created that the otherwise illegal strike or lockout as declared by the Labour Court shall not be characterized as illegal if withdrawn within 48 hours, with an avowed aim to establish industrial peace and normalcy in the interest of the society. Indeed, it is a legislature''s attractive but coercive offer to make the erring parties to correct their mistakes and to retract from the illegal path. The penal consequences following the illegality of the strike, in particular, would be spared to the employees and the Recognised Union. The employees would be spared from the charge of participation in an illegal strike and the Recognised Union from the threat of cancellation of its registration u/s 13(i) V of the Act and also from the allegation of an unfair labour practice under item I of Schedule III of the Act.
10. There is, however, nothing in the provision to prevent the Labour Court from granting a declaration that even a proposal to go on an illegal strike would be illegal. There are three distinct contingencies which the Labour Court is empowered to consider, viz., to propose to go on a strike or to lock-out; to commence a strike or lock-out; and to continue such strike or lock-out and grant a declaration that such strike/lock-out is illegal. There is no provision to carve out an exception in a case of withdrawal of the strike/lock-out before the declaration to oust the Court''s jurisdiction. Once a strike or a lock-out is proposed and commenced and continued and a reference is made under this provision, the Labour Court''s jurisdiction is not divested to grant or not to grant a declaration merely because the strike/lock-out is withdrawn before the declaration. The Labour Court is bound to decide the Reference and reach the logical end in accordance with law, unless of course, the whole Reference is withdrawn and is not prosecuted. The Union can withdraw the strike but thereby it cannot divest the Labour Court of its jurisdiction to decide and declare that the strike commenced was illegal under the Act. It would be altogether another and different aspect that u/s 25(5) the strike shall not be deemed to be illegal for the purposes of the Act. The Labour Court will be well within its legitimate jurisdiction to decide the Reference to grant or not to grant a declaration that strike commenced was an illegal strike though it was withdrawn before such declaration. The illegality would be from the date of the commencement till the date of its continuation and withdrawal. Section 25(5), however, takes away the sting of the illegality for the purposes of the Act and the consequences will be spared for the Union and for the employees as it will be deemed not to be an illegal strike for the purposes of the Act. By the legislative fiction the strike which is declared as illegal by the Labour Court will not be deemed or considered as illegal if it would be withdrawn within 48 hours of the declaration. Even Hariganga''s case (supra) does not lay down the law that as soon as the strike is withdrawn the Labour Court ceases to have jurisdiction to decide such a Reference.
11. Yet there is another important limb of the submissions of Shri Patel to question the validity of the impugned order of the Labour Court. According to him, even assuming that the strike that commenced in breach of Section 24(1)(a), without 14 days notice it became legal after expiry of 14 days and therefore the order of the Labour Court holding the strike illegal for the entire period is erroneous and bad in law. There is a great fallacy in this submission as the learned advocate appears to ignore a crucial factor or development which had blocked the way of the strike to the end of legality after expiry of 14 days. Admittedly the strike illegally commenced on and from 10-7-1995 and would have perhaps become legal after 24-7-1995 or so. However, in between these 2 dates, on 17-7-1995 the Union issued a strike notice with a view perhaps to cure the initial illegality of the strike but it continued the strike even after the said notice, even during the crucial period of 14 days strike notice. A very peculiar situation has arisen. The strike commenced in breach of Section 24(1)(a) continued to be illegal upto 17-7-1995 and thereafter the strike notice has attached another illegality of continuation of the illegally commenced strike, during the period of the strike notice. If the Union had withdrawn the strike before the strike notice the illegality would have been for a period of 7 days or so, only but it continued the illegal strike and the strike notice did not and could not cure the initial illegality of commencement and continuation of the illegal strike even after the strike notice. The Union invited another illegality by giving the notice of strike as it could not have commenced/continued the strike upto 31-7-1995 from the date of the notice dated 14-7-1995. The illegal strike having been continued even during the strike-notice-period, attracted dual illegality. The continuation of the illegally commenced strike after the strike notice during the period of 14 days is per se and ex-facie illegal. The Labour Court has therefore validly held the strike as illegal and was within its absolute jurisdiction to do so.
12. There is a third and greater hurdle in the path way of the legality of the strike. The Union''s strike notice was received by the Conciliation Officer on 27-7-1995 and u/s 20 of the Industrial Disputes Act, 1947, the conciliation proceedings were deemed to have commenced on that date of receipt of the strike notice and the same were concluded on 19-8-1995 when both the parties signed the Memorandum of Settlement. From 27-7-1995 till 19-8-1995 i.e. from the commencement of the Conciliation proceeding till its conclusion in culmination of a Settlement on 19-8-1995, the continuation of the illegal strike attracted and was further severely hit by Section 24(1)(c) of the MRTU & PULP Act. This was the third colour of illegality that smeared the strike which was illegally commenced and continued u/s 24(1)(a) and was illegally continued u/s 24(1)(c) of the Act. There is no way out for the Union from the stigma of the illegality of the strike from 10-7-1995 to 19-8-1995 as it is tightly surrounded and gheraoed by three clear-cut illegalities, and it was therefore, rightly declared as illegal by the Labour Court. In view of Section 25(5) however, the said strike shall be deemed not to be illegal for the purposes of this Act. Moreover, the Settlement between the parties has fully protected the Union. Beyond that protection the petitioner Union and the employees cannot seek any other relief of any nature whatsoever.
13. In my considered view there is no merit in the petition. The Labour Court has rightly decided the Reference. There is no illegality or infirmity in the impugned judgment and order of the Labour Court. The Writ Petition fails and the same is dismissed with no orders as to cost.
