MANAGEMENT, ESSORPE MILLS LTD.versusPRESIDING OFFICER, LABOUR COURT AND ORS.

                              [2008] 5 S.C.R. 1149


                 MANAGEMENT, ESSORPE MILLS LTD.                             A
                                   v.
            PRESIDING OFFICER, LABOUR COURT AND ORS.
                    (Civil Appeal No. 2567 of 2006)
                                 APRIL 4, 2008
                                                                            B
             [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

              Industrial Disputes Act, 1947 - s. 22(1) - Notice of strike
         - Issued on 14th March, 1991 stating that the strike will
         commence on or after 24th March, 1991 - Validity of - Held:        c
         Not valid - The strike notice did not satisfy the requirement of
         advance notice stipulated uls 22(1) since six weeks' time
         before date of strike not given.
               On 14th March, 1991, the Workers' Union served a
         strike notice on the management of Appellant-textile mills D
         purportedly under s.22(1) of the Industrial Disputes Act,
_;,,,.   1947 stating that "strike would commence on or after 24th
         March, 1991 ". Respondents-workmen were dismissed
         from service after holding of disciplinary enquiry. They
         filed petitions under s.2-A of the Act for re-instatement with E
         back wages and continuity of service. The Labour Court
         held that the strike was illegal, however, in purported
         exercise of powers under s.11-A of the Act it substituted
         the punishment of dismissal by order of discharge and
         awarded compensation of Rs.50,0001- to each workman. F
         High Court allowed the Writ Petition filed by Respondents
         on ground of non compliance of s.33(2)(b) of the Act and
         directed their re-instatement with full back wages and
         continuity of service. It held that a copy of the strike notice
         dated 14th March, 1991 was sent to the Conciliation Officer
                                                                         G
         and, therefore, conciliation proceedings were pending on
         the date of dismissal and since the dismissal was without
         the approval of the Conciliation Officer in terms of s.33 of
         the Act, the same was illegal. Appellant filed writ appeals
         which were dismissed.
                                       1149                              H
    1150       SUPREME COURT REPORTS              [2008] 5 S.C.R.


A       In appeal to this Court, it was contended by the
  appellant that the High Court failed to appreciate that the
  strike notice issued on 14th March, 1991 stating that the
  strike will commence on or after 24th March, 1991 i.e. (ju.st
  10 days notice) did not satisfy the requirement of advance
B notice stipulated u/s 22 (1), therefore, it was not a valid
  notice of strike, consequently, in the eye of law there could
  be no commencement of conciliation proceedings in
  terms of s.20(1) as a result of the said notice. It was
  contended that since no conciliation proceeding was
C pending at the time of dismissal of workmen, s.33 was
  not attracted and there was no question of seeking
  permission of the Conciliation Officer in such a case:
       The Appellant contended that the High Court failed
  to appreciate that in terms of s.33-A for not obtaining
D permission of the Conciliation Officer under s.33, the only
  legal consequence provided is that the Conciliation Officer
  shall take the complaint of contravention of the provisions
  of s.33 into account in mediating in and promoting the
  settlement of such industrial dispute and therefore the
E order of dismissal in any event was not illegal. It was
  contended that there was no complaint made to the
  Conciliation Officer in this case and the Conciliation officer,
  unlike the Labour Court or an Industrial Tribunal, has no
  power of adjudication and therefore, he could not set aside
F the order of dismissal which remained valid.
           Allowing the appeal, the Court
       HELD:1.1. S.22 of the Industrial Disputes Act, 1947
  aims at stalling action for illegal strike. It pre-supposes a
G notice before the workmen resorted to strike. The notice
  has to be given to the employer. Different stages
  enumerated by Section 22(1) of the Act are : (i) Advance
  notice of 6 weeks; (ii) 14 days given to the employer to
  consider the notice; (iii) the workmen giving the notice
  cannot go on strike before the indicated date of strike and
H
MANAGEMENT, ESSORPE MILLS LTD. v. PRESIDING               1151
     OFFICER, LABOUR COURT & ORS.

(iv) Pendency of any conciliation proceedings. [Paras 12, A
15, 20] [1156-C, D, E; 1157-A; 1159-C, D]
      1.2. The workmen cannot go on strike within six
weeks notice in terms of s.22(1)(a) and 14 days thereafter
in terms of s.22(1 )(b). Earlier illegal strike is not remedied
by a subsequent strike as provided in s.22. [Paras 19,            B
20] [1159-C-D]
     1.3. In the instant case, the date of notice is 14.3.1991
and the proposed strike was on 24.3.1991. Six weeks' time
before the date of strike was not given. Therefore, on the C
face of it, it cannot be treated to be a notice as
contemplated under s.22(1 )(a). If no notice is given to the
employer, the effect of it is that he is not aware of the
proceedings. The conciliation proc.eedings must be
one meeting the requirements of law. [Paras 17, 18]
[1157-D-E; 1158-G-H; 1159-A-B]                                 D
     1.4. In this case, no conciliation proceedings were
pending under sub-section (4) of Section 22. The stand
of the Respondents that simultaneously notice is required
to be given to the Conciliation Officer in Form 'L' and, E
therefore, s.20 has full application is clearly untenable
because Form 'L' refers to the Central Rule 71 and not
s.22. There is nothing in s.22 which requires giving of
intimation or copy of the notice under s.22 to the
Conciliat.ion Officer. [Paras 13, 16] [1158-F; 1159-C-D]
                                                          F
     Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram
Gopal Sharma (2002 (2) SCC 244) and Lokmat Newspapers
Pvt. Ltd. vs. Shankarprasad (1999 (6) SCC 275) - referred
to.
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.               G
2567 of 2006.
     From the final Order dated 31.12.2003 of the High Court
of Judicature at Madras in W.A. No. 4088 and 4089/2003
      P.P. Rao, C. Manohar Gupta, V. Ramasubramanian,             H
    1152       SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A   Anshuman Ashok, Purushottam S.T., Fabin A.K., Sahar Bakht
    and Abhishek Gupta for the Appellant.

         S. Gurukrishna Kumar, C.K. Chanrasekaran and S.R.
    Setia for the Respondents.
B          The Judgment of the Court was delivered by

           DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
    the order passed by a Division Bench of the Madras High Court
    dismissing the Writ Appeals filed by the appellant.

c         2. Background facts as projected by the appellant are as
    follows:

         Respondents 2 to 23 went on illegal strike from 8.11.1990.
  Respondent No.15 and one S.L. Sundaram who had died in
  the meantime were ·the first to strike work in the blow room
D resulting in the stoppage of entire operation of the appellant's
  textile mills. Other workmen followed. All the 55 workers who
  resorted to strike were suspended. Even after their suspension,
  respondents 2 to 17 remained in the premises causing
  obstruction. All the 55 workers were charged for mis-conduct.
E Out of them 34 apologized and they were taken back into service.
  But subsequently, three more also apologized and they too were
  allowed to join duty. The respondents 2 to 23, however, did not
  relent. On 14.3.1991 the General Secretary of the Tamil Nadu
  Panchalai Workers' Union served a strike notice on the
F management purportedly under Section 22(1) of the Industrial
  Disputes Act, 1947 (in short the 'Act') stating that "strike would
  commence on or after 24.3.1991" and on sth and 24th April and
  13th May, 1991 the respondents 2 to 23 were dismissed from
  service after holding a disciplinary enquiry. Petitions were filed
G under Section 2-A of the Act for re-instatement with back wages
  and continuity of service. The Labour Court by its award dated
  24.1.1994 held that the strike was illegal. However, in purported
  exercise of powers under Section 11-A of the Act the Labour
  Court substituted the punishment of dismissal by c:·der of
H discharrie and awarded compensation of Rs.50,000/- to each
MANAGEMENT, ESSORPE MILLS LTD. v. PRESIDING                     1153
 OFFICER, LABOUR COURT & ORS. [PASAYAT, J.]

workman. The award was challenged by the appellant as well               A
as the workmen before the High Court. On 5.8.2000 a learned
Single Judge of the High Court allowed the Writ Petition
No.8389of1995 filed by the respondents 2 to 23 on the ground
of non compliance of Section 33 (2)(b) of the Act and directed
re-instatement of the workmen with full back wages and                   B
continuity of service. He took the view that a copy of the strike
notice dated 14.3.1991 was sent to the Conciliation Officer and,
therefore, conciliation proceedings were pending on the date
of dismissal and since the dismissal was without the approval
of the Conciliation Officer in terms of Section 33 of the Act the        c
same was illegal. Reliance was placed on a decision of this
Court in Jaipur Zita Sahakari Bhoomi Vikas Bank Ltd. V Ram
Gopal Sharma (2002 (2) SCC 244). The appellant's Writ
Petition No.10239of1999 against the alteration of punishment
was dismissed. On 30.12.2003 by the impugned judgment a                  D
Division Bench of the High Court dismissed the Writ Appeals
holding that the judgment of this Court did not make any
distinction between the proceeding pending before the
Conciliation Officer and those pending before an Industrial
Tribunal.
                                                                         E
     3. On 21.2.2004 the Special Leave Petitions were filed
and when the matter came up for hearing on 20.3.2006 after
notice, a Bench of this Court suggested certain terms for
amicable settlement as set out in the order of said date. The
appellant agreed to the terms proposed, but the respondents 2            F
to 23 did not agree.

     4. The basic stand of the appellant is as follows:
      The' High Court failed to appreciate that in the absence of
a valid notice of strike in terms of Section 22(1) there can be no       G
commencement of conciliation proceedings in terms of Section
20(1) of the Act. Section 22(1) prohibits a strike in a public utility
service, in breach of contract, without giving to the employer
advance notice of six weeks. It prohibits strike (a) within the
notice period of six weeks, (b) within 14 days of giving such
                                                                         H
    1154     SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A notice, (c) before the expiry of the date of strike specified in
  such a notice, (d) during the pendency of any conciliation
  proceedings before a Conciliation Officer and seven days after
  the conclusion of such proceedings. The strike notice issued
  on 14-3-1991 stating that the strike will commence on or after
B 24-3-1991 i.e. (just 10 days notice) does not satisfy the
  requirement of advance notice stipulated u/s 22 (1 ). Therefore,      ..
  it is not a valid notice. Consequently, in the eye of law there was
  no commencement of conCiliation proceedings as a result of
  the said notice.
c        5. On the dates of dismissal of workmen no conciliation
    proceeding was pending in the eye of law. Unless a conciliation
    proceeding was pending at the time of dismissal of workmen,
    Section 33 will not be attracted and there is no question of
    seeking permission of the Conciliation Officer in such a case.
D
        6. The High Court failed to appreciate that in terms of
  Section 33-A for not obtaining permission of the Conciliation
  Officer under Section 33, the only legal consequence provided
  is that the Conciliation Officer shall take the complaint of
  contravention of the provisions of Section 33 into account in
E mediating in and promoting the settlement of such industrial
  dispute. Therefore the order of dismissal in any event was not
  illegal. There was no complaint made to the Conciliation Officer
  in this case.

F          7. The Conciliation officer, unlike the Labour Court or an
    Industrial Tribunal, has no power of adjudication. Therefore, he
    cannot set aside the order of dismissal. The dismissal remains
    valid.
        8. Stand of the respondents 2 to 23 on the other hand is
G that the appellant did not raise the plea that there was no
  conciliation proceeding pending at the time of dismissal of the
  workmen. It is stated that there was deemed conciliation. Before
  a learned Single Judge the primary issue revolved on the
  question as to whether any notice of conciliation had been issued
H by th?. Conciliation Officer and, therefore, there was pendency
        MANAGEMENT, ESSORPE MILLS LTD. v. PRESIDING                   1155
         OFFICER, LABOUR COURT & ORS. [PASAYAT, J.]

       of conciliation proceeding. Learned Single Judge held against A
       the appellant relying on a decision of this Court in Lokmat
       Newspapers Pvt. Ltd. vs. Shankarprasad (1999 (6) SCC 275)
       holding that once strike notice is issued under Section 22 of the
       Act; conciliation proceeding is deemed to have been
       commenced and no further notice from the Conciliation Officer          s
..._   is necessary.

              9. The stand that the notice of strike does not meet the
       requirements of Section 22 of the Act is also not tenable. Section
       22(1 )(d) of the Act provides that no person employed in a public
       utility service shall go on strike in breach of contract during the    C
       pendency of any conciliation proceedings before the Conciliation
       Officer and 7 days after the conclusion of the proceedings. The
       Conciliation Officer shall hold the conciliation proceedings when
       notice under Section 22 of the Act has been given. Under Section
       12(3) if a settlement is arrived at during conciliation proceedings,   D
       a report is to be sent by the Conciliation Officer to the
       Government together with the settlement. If no settlement is
       arrived at the Conciliation Officer has to send the failure report
       under Section 12(4) of the Act and Government has to referthe
       dispute under Section 12(5). Unlike in the case of non public          E
       utility service, the' concept of deemed conciliation has been
       statutorily provided in the case of public utility service so that
       workmen did' not go on strike during pend ency of the conciliation
       proceedings. When strike notice under Section 22 of the Act
       has been given the Conciliation Officer is mandatorily required        F
       to hold the conciliation proceedings under Section 20(1) of the
       Act.
             1.0. The purpose of providing for deemed conciliation is to
       prevent dis-location of public utility service. The object of
       enacting sub-sections (a) and (b) of Section 22(1) is for the G
       purpose of ensuring that workers do not rush into strike and
       give a chance to the Conciliation Officer to resolve the dispute.
            11. It is therefore clear that there was a deemed conciliation
       proceeding when the notice under Section 22 in Form 'O' of the
                                                                              H
    1156           SUPREME COURT REPORTS                 [2008] 5 S.C.R


A Tamil Nadu Industrial Disputes Rules, 1958 (in short the 'Rules')
  has been issued. Several alternatives are provided in Section
  22(1) and sub-clauses (a) to (d) are the alternatives which is
  clear from the use of the expression "or". As such the time limit
  set out in either one of the clauses (a) or (b) would therefore
B have to be read disjunctively which is clear from sub-clause (c)
  which provides that strike shall not be undertaken "before the
  expiry of the date of strike specified in any such notice as
  aforesaid". It is further submitted that decision in Jaipur Zita's
  case (supra) has full application.
C          12. A few facts which have relevance need to be noted.
        The notice was given about the proposed strike after the
  strike. Undisputedly, the workers resorted to strike on 8.11.1990.
  The notice was given on 14.3.1991. Different stages enumerated
D by Section 22(1) are as follows:
           (i)     Advance notice of 6 weeks.
           (ii)    14 days given to the employer to consider the notice;
           (iii)   the workmen giving the notice cannot go on strike
E                  before the indicated date of strike;
           (iv)    Pendency of any conciliation proceedings.
         13. In this case no conciliation proceedings were pending
    under sub-section (4). Sub-section (4) of Section 22 states that
F   the notice of strike referred to in sub-section (1) has to be given
    in such manner as may be prescribed. The Central Rule 71
    prescribes the manner in which the notice has to be given and
    the notice is in Form 'L'. The notice as mandated under Section
    22 has to be given to the employer.
G          14. Learned counsel for the respondent relied on Section
    20 which deals with commencement and conclusion of
  proceedings. According to the High Court the conciliation
  proceeding is deemed to have been commenced on the date
  on Nhich the notice of strike under Section 22 is received by
H the Conciliation Offi-:;er.
             MANAGEMENT, ESSORPE MILLS LTD. v. PRESIDING                   1157
              OFFICER, LABOUR COURT & ORS. [PASAYAT, J.]

                  15. The High Court seems to have lost sight of the crucial A
             words "notice of strike or lock out under Section 22". Section
             22 pre-supposes a notice before the workmen resorted to strike.
             The notice has to be given to the employer. Sub-section (6) of
             Section 22 also has relevance because within a particular time
             period after receipt of the notice under sub-section (1) he shall R
             report to the appropriate Government or to such authority as
     ...,    the Government may prescribe .
                   16. Stand of the respondents is that simultaneously notice
             is required to be given to the Conciliation Officer in Form 'L'
             and, therefore, Section 20 has full application. This plea is clearly c
             untenable because Form 'L' refers to Rule 71 and not Section
             22. There is nothing in Section 22 which requires giving of
             intimation or copy of the notice under Section 22 to the
             Conciliation Officer. At the stage of notice under Section 22 there
             is no dispute.                                                        D
                   17. The date of notice is 14.3.1991 and the proposed
             strike was on 24.3.1991. Therefore, on the face of it, it cannot
             be treated to be a notice as contemplated under Section
             22(1 )(a). The notice in question reads as follows:
                                                                                  E
                  "By Registered Post
                  The Strike notice issued by the employees under Rule
                  59(1)
                  From:                                                           F
-(                The General Secretary,
 f
                  Tamil Nadu Panchalal Workers Union,
     -..,.        39, 11th Cross Road,
                  Tata bath,
                  Coimbatore-12
                                                                                  G
                  To:
                  The Management,
                  Essorpe Mills,
     ~            Saravanapatti (Post),
                  Coimbatore-35.                                                  H
    1158          SUPREME COURT REPORTS              [2008] 5 S.C.R.


A          Sir,
          We have decided to strike work at Essorpe Mills,
    Saravanampatti Post, Coimbatore. Therefore, we are giving
    advance notice of strike under the provisions of Section 22(1)
    of the Industrial Disputes Act, 1947 (Central Act No.14of1947).
B   We would inform you as per Section 22(1 )(c) that the strike will
    commence on or after 24th March, 1991.

        We have enclosed our demands under Rule 29 of the
    Chennai Industrial Disputes Rules, 1958.
c                              Always in service to the Nation
                               Sd/- K. Palanichamy,
                               The General Secretary,
                               Tamil Nadu Panchalal Workers Union
           Copy to:
D
           1.     Commissioner of Labour, Chennai
           2.     Addi. Commissioner of Labour, Coimbatore
           3.     Deputy Commissioner of Labour, Coimbatore

E          4.     Asstt. Commissioner of Labour (Conciliation-2),
                  Coimbatore
           5.     The Con:imissioner of Police, Coimbatore
           6.     The Collector, Coimbatore
           7.     1:he Commissioner cum Secretary, Labour and
F                 Recuirtment Board, Fort. St. George, Chennai
           8.     The Inspector of Factories, Coimbatore"
                                                                        ..,.,   •
         18. In the notice it is stated that the strike will commence
  on or after 24.3.1991. Obviously, six weeks' time before the date
G of strike was not given. In this case notice is 14.3.1991 and the
  proposed strike was on or after 24.3.1991. The inevitable
  conclusion is that the notice cannot be treated to be one under
  Section 22. Jaipur Zita's case (supra) has no application if the
  notice given is not in accordance with law. If no notice is given     ~

H to the employer, the effect of it is that he is not aware of the
     MANAGEMENT, ESSORPE MILLS LTD. v. PRESIDING                 1159
      OFFICER, LABOUR COURT & ORS. [PASAYAT, J.]

     proceedings. Obviously, the conciliation proceedings must be        A
     one meeting the requirements of law. Here, no notice in terms
     of Section 22 of the Act was there.
           19. Somewhat unacceptable plea has been taken by the
     respondents 2 to 23 that in terms of Section 22( 1)(b) after 14
     days of giving the notice, the workmen can go on strike. If this    B
~    plea is accepted six weeks' time stipulated in Section 22 (1)(a)
 '   becomes redundant. The expression "giving such notice" as
     appearing in Section 22(1 )(b) refers to the notice under Section
     22(1 )(a). Obviously, therefore, the workmen cannot go on strike
     within six weeks notice in terms of Section 22(1)(a) and 14 days    c
     thereafter in terms of Section 22(1 )(b).

          20. The expression "such notice" refers to 6 weeks
     advance notice. Earlier illegal strike is not remedied by a
     subsequent strike as provided in Section 22. If such stand is
                                                                         D
     accepted it will go against the requirement of Section 22 which
~-
     aims at stalling action for illegal strike.
          21. Above being the position, the judgments of learned
     Single Judge as well as that of the Division Bench cannot be
     sustained and· deserve to be set aside which we direct.             E
     Notwithstanding the same the fair approach indicated by the
     appellant by accepting the decision of this Court by order dated
     20.3.2006 can be given effect to. It is open to respondents 2 to
     23 or any of them to comply with the terms indicated.
          22. The appeal is allowed to the extent indicated above.       F
     There will be no order as to costs.
-y
     B.B.B.                                         Appeal allowed.