PETITIONER: FEROZ DIN AND OTHERS Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT: 25/11/1959 BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAS, S.K. HIDAYATULLAH, M. CITATION: 1960 AIR 363 1960 SCR (2) 319 CITATOR INFO : E 1968 SC 247 (9,11) ACT: Industrial Dispute-Strike-Notice of discharge-Whether amounts to lock-out-Sanction to prosecute-Facts constituting the offence not shown on the face-Conviction on such sanction if bad-Industrial Disputes Act, 1947 (14 of 1947), ss. 27, 24, 2(1). HEADNOTE: A company dismissed from its service four of the appellants, for taking part and instigating others to join, in an illegal slowdown strike in the Hot Mill Section of its works, which were a public utility service. On such dismissal the slow-down strike however gained strength. The company thereupon issued a notice dated April 8, 1953, to the workers of the Hot Mill that unless they voluntarily recorded their willingness to operate the plant to its normal capacity, before 2 p.m. of April 10, they would be considered to be no longer employed by the company. As a result forty workers recorded their willingness, but the rest did not make any response at all. The company then issued a second notice dated April 25, stating, inter alia, that the Workers who did not record their willingness to work the plant to its normal capacity in terms of the previous notice dated April 8, had been considered to be no longer in service and their formal discharge 320 from the company's service had been kept pending in order to assure to the fullest that no one who wanted to work normally was being discharged on circumstantial assumptions and calling upon the workers to record their willingness by April 28, 1953, to operate the plant to its normal capacity, and further intimating that failing this their names would be removed from the company's rolls and their discharge would become fully effective with all the implications of a discharge. After this notice the entire body of workers of the works except those engaged in the essential services went on strike Thereafter, the company with the sanction of the Government filed a complaint under S. 27 of the Industrial Disputes Act against the appellants for having instigated and incited others to take part in an illegal strike. The appellants were convicted. The appellants challenged the said conviction under S. 27 of the Act contending that the strike was not illegal as the strike had been in consequence of an illegal lock-out declared by the company by the said notices dated April 8 and April 25. The appellants further contended that the notices did not effect a discharge, but declared a lock-out and that even if the notices did effect a discharge, then also there was a lock- out, for a discharge is equally a lock-out. Finally the appellants challenged the propriety of, the sanction under s. 34(1) of the Act to make the complaint as the sanction did not on the face of it refer to the facts constituting the offence. Held, that on a construction of the notices they bad the effect of discharging the workmen, and did not amount to a declaration The removal of the name of a worker from the Roll of the company was a formality which the notices said had been kept pending and this did not prevent the discharge having taken effect. The words " refusal by an employer to continue to employ any number of persons employed by him " in S. 2(1) do not include the discharge of an employee. Held, further that sanction under s 34(1) of the Act would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though the facts were not stated on the face of the sanction itself. Presidency Jute Mills Co. Ltd. v. Presidency Jute Mills Co. Employees, Union, [1952] I.A.C. 62, approved Gokalchand Dwarkadas Morarka v. The King, (1948) L.R. 75 I.A. 30, discussed. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.. 48 of
1958.
Appeal by special leave from the judgment and order dated
July 4, 1956, of the Calcutta High Court,
321
in Criminal Revision No. 1005 of 1955 arising out of the
judgment and order dated July 21, 1955, of the Additional
Sessions Judge, Asansol, in Criminal Appeal No. 125 of 1955.
H. J. Umrigar and Sukumar Ghose, for the appellants.
S. M. Bose, Advocate-General for the State of West Bengal,
A. C. Mitra, D. N. Mukherjee and P. K. Bose, for the
respondent.
B. Sen, P. K. Chakravarty and B. N. Ghosh, for the
interveners.
1959. November 25. The Judgment of the Court was delivered
by
SARKAR J.-There are five appellants before us. Four of them
were employees of a company called the Indian Iron & Steel
Co., Ltd. and the fifth an outsider.
The appellants were convicted by a Magistrate of Asansol in
West Bengal, of an offence under s. 27 of the Industrial
Disputes Act, 1947, hereinafter referred to as the Act, for
having instigated and incited others to take ‘art in an
illegal strike. Each appellant was sentenced to simple
imprisonment for three months. On appeal by the appellants,
the learned Additional Sessions Judge of Asansol, confirmed
the order of the learned Magistrate. A petition to the High
Court at Calcutta against the order of the learned
Additional Sessions Judge by way of revision also failed.
The appellants have now appealed to this Court with special
leave. The respondent to this appeal is the State of West
Bengal and the Company has been allowed to intervene.
The Company owns a factory at Burnpur near Asansol in which
there is a Sheet Mill. The factory was declared by the
Government to be a public utility service. There was a
slow-down strike in the Hot Mill section of the Sheet Mill.
The Company thereupon issued charge-sheets to some of its
workers, including the four appellants in its employment,
for taking part in the slow-down strike and instigating
others to join it as also for other misconduct and
322
after an enquiry, dismissed these four appellants from
service. On such dismissal the slow-down strike gained in
strength. Thereupon, on April 8, 1953, the Company issued
a notice to the workers of the Hot Mill the relevant portion
of which is set out below:
“The workers of the Hot Mills (Sheet Mills) are hereby
notified that unless they voluntarily record their
willingness to operate the plant to its normal capacity they
will be considered to be no longer employed by the Company,
after which the Company will recruit -other labour to man
the Plant.
The workers must record their willingness before Friday,
10th April, 2-0 p.m., otherwise action as stated above will
be taken.”
As a result of this notice forty workers of the Hot Mill
recorded their willingness but the rest, who were about
three hundred in number, did not make any response at all.
In fact, on April 11, 1953, the workers in the entire Sheet
Mill numbering about one thousand and three hundred, went on
a sit-down strike which lasted till April 20, 1953.
On April 25, 1953, the Company issued another notice to the
workers which is set out below:
” In accordance with General Manager’s Notice dated the 8th
April, 1953, you have been considered to be no longer
employed by the Company after 2 p.m. on Friday, 10th April,
1953, as you did not record your willingness before that
date and time to operate the Plant to its normal capacity.
Your formal discharge from Company’s service bad been kept
pending in order to assure to the fullest that no one who
wanted to work normally, was being discharged on
circumstantial assumptions.
Now, however, there are no further reasons to believe that
every one concerned has not all necessary information about
the facts of the case and every opportunity to form a
correct and legitimate opinion on the utterly irresponsible
attitude adopted by some of the workers.
A copy of the notice dated the 22nd April, 1953, issued by
the Directorate of Labour, Government of
323
West Bengal, which has already been widely circulated, is
attached herewith, in English with translations in Bengali,
Hindi and Urdu.
You are, therefore, hereby given a final Notice that if by
11 a.m. on 28th April, 1953, you do not record your
willingness to operath the Plant to its normal capacity,
your name will be removed from the Company’s Roll and your
discharge will become fully effective with all the
implications of a discharge on grounds of serious breach of
discipline.’ and your place will be filled by promotion from
amongst the existing men or by engaging new men.”
After this notice the workers of the entire factory, except
those engaged in essential services, went on a strike on
April 27,1953, which lasted for twenty two hours.
On May 19, 1953, the Company filed a complaint under s. 27
of the Act with the sanction of the Government granted on
May 2, 1953. Out of this complaint the present appeal
arises. The respondent’s case is that the strikes of April
11, to April 20, 1953, and April 27, 1953, were illegal and
the appellants had instigated them. The appellants have not
in this Court challenged the finding of the Courts below
that the strikes took place and that they had instigated
them, but they contend that the strikes were not illegal.
Section 27 of the Act provides that a person who instigates
or incites others to take part in, or otherwise acts in
furtherance of a strike, which is illegal under the Act,
commits an offence. The respondent’s case is that the
strikes were illegal under s. 24(1) of the Act which
provides that a strike or a lock-out shall be illegal if it
is commenced or declared in contravention of s. 22. There
is no dispute that the strikes were in contravention of s.
22. The appellants rely on s. 24(3) of the Act under which
a strike declared in consequence of an illegal lock-out
shall not be deemed to be illegal and say that the strikes
had been in consequence of an illegal lock-out by the
Company of the three hundred workers of the Hot
324
Mill by the notices of April 8, and April 25. It is clear
that if there was such a lock-out, it was illegal
under s. 24(1) for it would be clearly in contravention of
s. 22.
The question then is, was there a lock-out by the
Company? The learned Advocate for the appellants first
contends that the notices use the same words as are used in
the definition of a lock-out in s. 2(1) of the Act and
therefore by those notices the Company locked-out the men.
We think that this argument is unfounded. The definition so
far as is material reads, ” lock-out means the refusal by an
employer to continue to employ any number of persons employ-
ed by him.” In the notices the words are ” considered to be
no longer employed ” while the definition uses the words ”
refusal by the employer to continue to employ.” Therefore,
the words are not the same. Furthermore, the words used in
the notices and in the definition have to be read in their
respective contexts. For reasons to appear later, the words
used in the notices meant a discharge of the employees from
service while the words used in the definition do not
contemplate such a discharge of the workmen.
The Courts below have come to the finding that by these
notices the three hundred workers of the Hot Mill were
discharged on April 10, 1953, and had not been locked-out.
The learned Advocate for the appellants says that in this
the Courts were wrong. He puts his arguments in two ways.
First, he says that the notices did not effect a discharge
till April 28, 1953, and they had in the meantime resulted
in a lockout of the workers from April 10, 1953, in the
sense that their services had not been terminated but they
had not been allowed to attend to their duties. Then he
says that even if the notices effected a discharge, then
also there was a lock-out, for a discharge is equally a
lock-out within the meaning of its definition in the Act as
the prevention by an employer of the workers from attending
to their duties without discharging them, is.
Did the notices then effect a discharge ? We agree with the
Courts below that they did. The learned
325
Advocate for the appellants contends that the two notices
taken together make it perfectly clear that there was no
discharge of any employee prior to 11 a. m. of April 28,
1953. He says that the notice of April 25, shows that the
notice of April 8, did not effect any discharge, for, the
first mentioned notice ,jays that the formal discharge had
been kept pending and it also required the workers to record
their willingness to operate the plant to its normal
capacity by 11 a. m. on April 28, and further stated that
failing this their names would be removed from the Company’s
roll and their discharge would become fully effective.
We are unable to read the notices in the way suggested. The
notice of April 8, clearly stated that unless the workers
notified their willingness to operate the plant to its
normal capacity by 2 p. m. on April 10, they would be
considered to be no longer in the employment of the Company.
It plainly meant that on their failure to record the
willingness by the time mentioned, the workers would cease
to be in the employment of the Company, that is, in other
words, discharged. Taken by itself, we do not think it is
capable of any other meaning. We are also unable to agree
that there is anything in the notice of April 25, which
would show that a different meaning ought to be put on the
words used in the notice of April 8, than they normally
bear. The later notice also states that the workers bad
been considered to be no longer employed from April 10.
Hence it maintains that the workers had been discharged on
April 10. It no doubt says that the formal discharge had
been kept pending but that only means, as is clear from the
last paragraph of the notice, that the names of the workers
had not been removed from the Company’s roll. The word
“formal” must have its due meaning; it emphasises that the
real discharge had already taken place. We may also state
that it has not been contended before us that there can be
no discharge till a worker’s name is removed from the roll
and, without more, we do not think that we would have
accepted that contention if made. The removal of the name
of a worker from the roll follows his discharge and that is
42
326
what was meant by the statement in the notice ” that the
formal discharge had been kept pending.”
The circumstances which led to the issuing of the notice of
April 25 also show that the workers had actually been
discharged on April 10. What had happened was that the
Labour Minister of the Government of West Bengal had
intervened in the dispute between the Company and its
workers. He met the workers and on April 21, 1953, that is,
after the termination of the first of the two strikes,
suggested certain terms for the settlement of the dispute.
His suggestion was that ” if the workers of the Hot Mills,
who stand discharged from 2 p.m. of April 10, 1953, as a
consequence of their disregarding the notice issued on 8th
April, 1953, report themselves for duty immediately and
record their willingness to operate the plant to its normal
capacity, the Government would recommend their reinstatement
to the Management.” A copy of this suggestion was forwarded
to the Company by the Government with a request to implement
the recommendations contained in it with a further request
to give the suggestion a wide publicity. The company
circulated the Labour Minister’s suggestion among the
workers and to comply with his request to implement it, it
issued the notice of April 25, to which a copy of the
suggestion was attached. It is, therefore, clear that all
that the Company intended to do by the notice of April 25,
was to comply with the Government’s suggestion and so to
cancel the discharge of the workers of the Hot Mill which
had already taken effect and reinstate them in their former
employments if the workers carried out their part of the
suggestion. This notice, therefore, does not support the
contention that the workers had not been discharged till
April 28, 1953.
We may also state that there is no evidence that prior to 2
p.m. of April 10, 1953, any employee had been prevented by
the Company from attending to his duty.
The next question is whether a discharge of employees by an
employer amounts to a lock-out. It is said that the words
used in the definition of a lock-out,
327
namely, “the refusal by an employer to continue to employ
any number of persons employed by him’ cover the discharge
of employees by an employer. The contention so raised was
rejected by the Labour Appellate Tribunal in Presidency Jute
Mills. Co. Ltd. v. Presidency Jute Mills Co. Employees
Union (1). We are in entire agreement with the view there
expressed.
It seems to us that to construe the definition as including
a discharge would be against the entire tenor of the Act and
also against the meaning of a lock-out as understood in
industrial relations.
By virtue of s. 22 of the Act, in a public utility ,service
no worker can go on strike nor can an employer lock-out his
workmen without giving notice of strike or of lock-out
within six weeks before the strike or lock-out as the case
may be or within fourteen days of such notice or before the
date fixed in such notice or during the pendency of any
conciliation proceedings before a conciliation officer and
seven days after the conclusion thereof. Section 23
prohibits strikes and lock-outs in other industrial
establishments during the pendency of conciliation
proceedings before a Board and for seven days thereafter.
Section 24(1) makes a strike and a lock-out in contravention
of ss. 10, 22 and 23, illegal. Section 24(2) provides that
a strike declared in consequence of an illegal lock-out and
a lock-out declared in consequence of an illegal strike
shall not be illegal. Section 25 prohibits the spending of
money on illegal strikes and lock-outs.
The Act therefore treats strikes and lock-outs on the same
basis; it treats one as the counterpart of the other. A
strike is a weapon of the workers while a lock-out that of
the employer. A strike does not, of course, contemplate the
severance of the relation of employer and employed; it would
be strange in these circumstances if a lock-out did so.
Under the provisions of s. 22, a lock-out cannot be declared
in a public utility service immediately; it can be declared
only after the date fixed in the notice and cannot be
declared within fourteen days of the giving of the notice.
Now, if a discharge is included in a
(1) [1952] L A.C. 62.
328
lock-out, an employer in such a service cannot discharge his
employee, except after the time specified. Now, that would
often make it impossible for the employer to carry on his
business. It is conceivable that an employee may be
guilty of such misconduct that his immediate discharge is
essential. Indeed., there is no reason to think that such
cases would be very infrequent. In such a case if an
employer is prevented on pain of being made criminally
liable under s. 27 from discharging the employee forthwith,
irreparable mischief may be caused to his works or serious
personal injury -to himself or his other employees. We have
no reason to think that the Act intended such a result.
Again, if a lock-out included a discharge, then there would
be a conflict between ss. 22 and 23 on the one hand and s.
33 on the other. As has already been stated, ss. 22 and 23
prohibit a lock-out of workers during the pendency of the
conciliation proceedings, therein mentioned, and seven days
thereafter. According to the interpretation suggested by the
learned Advocate for the appellants, during this time no
worker could at all be discharged for a lock-out includes a
discharge, it being remembered that the prohibition in the
section is absolute. Under s. 33 however, an employer is
prohibited during the pendency of a conciliation proceeding,
from discharging a workman concerned in the dispute for any
misconduct connected with such dispute save with the express
permission of the authority before whom the proceeding is
pending. So if a lock out includes a discharge, under ss.
22 and 23 there can be no discharge during the conciliation
proceedings while under s. 33 there could be one with the
permission of the authority conducting the proceeding. If a
discharge amounted to a lock-out, an absurd result would
thus be produced.
By an amendment made on October 2, 1953, certain provisions
have been introduced into the Act which would show clearly
that a lock-out as defined in s. 2(1), which section has
been left unaltered by the amendment, was never intended to
include a discharge of
329
workmen. We refer first to s. 2(oo) by which a new
definition was introduced in the Act which, so far as is
necessary for the present purpose, is in these words:
Retrenchment means the termination by the employer of the
service of a workman for any reason whatsoever otherwise
than as a punishment inflicted bY way of disciplinary
action.
If lock-out includes a discharge, then retrenchment as
defined in s. 2(oo) would also clearly be a lock-out.
Obviously, if that were so, then retrenchment would not have
been separately defined. Again, tinder s. 25F, also
introduced into the Act by the amendment, a workman may be
retrenched by paying him wages for a month, the compensation
provided, and on notice to the Government. If retrenchment
was a form of lockout, then there would clearly be a con-
flict between ss. 22 and 23 on the one hand and s. 25F on
the other. Section 2(oo) and s. 25F were, no doubt, not in
the Act at the date of the notices with which we are
concerned, but since s. 2(1) was not amended it must be
taken that its meaning remained after the amendment what it
was before. Since the amendment made it clear that s. 2(1)
did not include a retrenchment, it follows that that
definition did not include a retrenchment prior to the
amendment. If it did not then include a retrenchment,
neither could it include a discharge, for, plainly, a
retrenchment is but one form of discharge.
It, therefore, seems to us that the words ” refusal by an
employer to continue to employ any number of persons
employed by him ” in s. 2(1) do not include the discharge of
an employee. We feel no difficulty in taking this view, for
it does not seem to us that the words “refusal to continue
to employ” in s. 2(1) plainly include a discharge. These
words have to be read with the rest of the definition and
also the word lock-out. The other parts of the definition
contemplate no severance of the relation of employer and
employed. The word ” lock-out “, as stated in the
Presidency Jute Mills Co’s case (1), in its dictionary sense
means refusal on the part of an employer to furnish work to
his operatives except on conditions to
(1) [1952] L.A.C. 62.
330
be accepted by the latter collectively. Therefore, inour
opinion, the rules of interpretation do not prevent
us from giving to the words used in the definition the
meaning ” a refusal by the employer to allow any
number of persons employed by him to attend to their duties
without effecting a termination of service as was done in
the Presidency Jute Mills Co’s case (1), which would avoid
one part of the Act coming in conflict with another.
The last point raised is about the propriety of the
sanction. Section 34(1) of the Act provides,
No court shall take cognisance of any offence punishable
under this Act save on complaint made by or under the
authority of the ap. propriate Government.
The learned Advocate for the appellants relying on
Gokalchand Dwarkadas Morarka v. The King (2), where a
provision somewhat similar to s. 34(1) was considered by the
Judicial Committee, contended that the sanction granted in
the present case by the Government of the West Bengal to
file the complaint against the appellants was bad as it had
been granted without reference to the facts constituting the
offence. It is true that the sanction does not on the face
of it refer to the facts constituting the offence. There
is, however, ample evidence in this case, which we did not
understand the learned Advocate for the appellants to
challenge and which clearly establishes that the entire
facts connected with the offence had been placed before the
sanctioning authority and the sanction had been granted on a
consideration of them. The Judicial committee in the case
above-mentioned itself observed that the sanction would be
good if it was proved by evidence that it had been granted
after all the necessary facts had been placed before the
sanctioning authority though these facts might not have been
stated on the face of the sanction itself. It therefore
seems to us that the sanction in the present case is
unobjectionable.
We feel, therefore, that the appeal must fail. We think it
right however in the circumstances of this case and in view
of the long lapse of time since the
(1) [1952] L.A.C. 62. (1948) L.R. 75 I.A. 30.
331
case started, to modify the sentence passed. In our view, a
sentence of simple imprisonment for the period already
served and a fine of Rs. 100 with simple imprisonment for a
period of fifteen days in default of payment of the fine for
each appellant will be sufficient in this case and we order
accordingly.
Subject to this modification of the sentence, this appeal is
dismissed.
Appeal dismissed.