IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27/03/2003
Coram
The Honourable Mr.B.SUBHASHAN REDDY, Chief Justice
and
The Honourable Mr. Justice D. MURUGESAN
W.A. No.1410 of 2003
and
W.A.M.P. Nos.1801 and 1835 of 2003
and
W.P. No.8972 of 2003
Bharat Petroleum Corpn. Ltd.
Rep. By its Dy. General Manager (HRS) South,
T. Somnath,
Chennai - 600 040. ... Appellant/
Petitioner in WP
-Vs-
1. Petroleum Employees Union,
rep. By its General Secretary,
P.S. Janardhanan,
Guruswamy Buildings,
6, Kachaleeswarar Street,
CHENNAI - 600 01.
2. Petroleum Workers Union,
rep. By its General Secretary,
G. Saravanan,
35, Vaidyanathan Street, Tondiarpet,
CHENNAI.
3. The Regional Labour Commissioner,
Mumbai.
4. Regional Labour Commissioner (Central),
Shahstri Bhavan, Haddows Road,
CHENNAI. ... Respondents
both in WA
and WP
Prayer in W.A.
Appeal against the order of the learned single Judge dated 24.3.2003
passed in W.P. No.8972 of 2003.
Prayer in W.P.
Petitioner under Article 226 of the Constitution of India to issue
Writ of Mandamus for the reasons stated therein.
!For Appellant/Writ Petitioner : Mr. A.L. Somayaji,
Sr. Counsel for
M/s.T.S. Gopalan
^For Respondents 1 and 2 : Ms. R. Vaigai
:J U D G M E N T
THE HON’BLE THE CHIEF JUSTICE
This Writ Appeal is directed against the order of the learned single
Judge dated 24.3.2003 made in W.P. No.8721 of 2003 ordering notice to the
respondents. The writ petition came to be filed as the respondents 1 and 2
resorted to strike pursuant to a strike notice issued thereto. The relief
sought for is to issue a Writ of Mandamus or any other appropriate writ or
direction forbearing the respondents 1 and 2 from resorting to illegal strike
pursuant to their notice dated 5.3 .2003 and pass such other orders as this
Court may deem fit. The Writ Appeal was admitted on 25.3.2003 and interim
order, as sought for in W.A.M.P. No.1801 of 2003, was granted. A petition in
W.A.M.P. No.1 835 of 2003 has been filed by the respondents 1 and 2 to vacate
the said order.
2. While the appellant is the Bharat Petroleum Corporation,
respondents 1 and 2 are the employees’ unions. The total number of employees,
who are the members in the above unions are stated to be 1,200 in number, both
put together and their work relates to marketing.
3. Mr. A.L. Somayaji, learned senior counsel, appeared for the writ
appellant while Ms. R. Vaigai, learned counsel, appeared for the respondents
1 and 2. The strike period, as notified by the respondents, is from 6.00 a.m.
of 25.3.2003 to 6.00 a.m. of 28.3.2003. It is stated that the injunction,
which has been granted by this Court on 25.3.20 03, was brought to the notice
of the respondents 1 and 2 and from the evening of 25.3.2003, the strike, in
so far as the Southern Region is concerned, has been discontinued hoping to
continue the same in the event of the injunction order being vacated.
4. We have heard both the learned counsel at length and we are
not only disposing of the writ appeal but also the writ petition for the
reason that after 06.00 a.m. tomorrow i.e. on 28.3.2003, no cause of action
survives for adjudication.
5. Ms. R. Vaigai, learned counsel, fairly stated that she is
not addressing the Court with regard to maintainability of the writ appeal as
it is filed against the order issuing notice. When we admitted the writ
appeal, we were alive to the situation that by the time the notice is served
and interlocutory application in the writ petition is heard, the writ petition
would become infructuous. As such, we have construed the order issuing notice
and in not granting the ex parte order as amounting to the rejection of the
order by which irreparable injury ensues. Anyhow, we need not elaborate this
any further as the learned counsel for the respondents 1 and 2 has
categorically stated before us that she is not raising that point and seeking
adjudication on merits.
6. At the time of passing of the injunction orders on 25.3.2003,
similar orders passed by the High Court of Bombay was submitted before us for
perusal and now it is not disputed that even the High Courts of Kerala and
Delhi had passed similar orders.
7. Mr. A.L. Somayaji, learned senior counsel, had strongly
relied upon clause (d) of sub-Section (1) of Section 22 of Industrial Disputes
Act. We are of the considered view that there was a prima facie case and
balance of convenience in favour of the appellant for issuance of the
injunction and that injury which will be inflicted not only on the appellant
but also the public in general, would irreparable. Now that we are disposing
of the writ appeal itself along with the writ petition, the considerations
would be different as we have to dwell on the respective contentions of either
counsel touching upon the merits of the case.
8. Mr. A.L. Somayaji, learned senior counsel, appearing for the
appellant, raised the following contentions:
(1) As the conciliation is pending pursuant to the requisition sought for
by the appellant, pending the said conciliation proceedings, the members of
the respondents 1 and 2 cannot resort to strike as the same is prohibited
under Section 22 (1) (d) of Industrial Disputes Act, 1947.
(ii) Six weeks notice, as mentioned in Section 22 (1) (a) of the Act, has
not expired and as such, this strike is illegal.
(iii) In any event, as the self lease rental dispute is pending adjudication
in Industrial Dispute, the strike notice is illegal.
9. Ms. R. Vaigai, learned counsel appearing for the respondents
1 and 2, countered the said arguments submitting that as there is no
Industrial Dispute, even according to the appellant, the question of
conciliation does not arise and resort to Industrial Disputes Act is
misconceived. She also submits that each of the clauses of sub-Section (1 )
of Section 22 of Industrial Disputes Act has to be read separately and not in
conjunction and as the strike notice satisfies clause (b) of sub-Section (1)
of Section 22, it is valid. She further submitted that a conciliation or a
dispute is restricted to the issue involved and there cannot be any omnibus
embargo placed on the strike unrelated to the conciliation proceedings or
industrial dispute and that pendency of an Industrial Dispute relating to the
self lease rental has got no relevance to place restraint on the instant
strike.
10. We shall now deal with the contentions 2 and 3 raised on
behalf of the appellant. We feel it apt to extract Sections 22, 23 and 24 of
Industrial Disputes Act, 1947, as they are relevant for adjudication. They
read thus,
22. Prohibition of strikes and lock-outs. – (1) No person employed in a
public utility service shall go on strike in breach of contract –
(a) without giving to the employer notice of strike, as hereinafter
provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice
as aforesaid; or
(d) during the pendency of any conciliation proceedings before a
conciliation officer and seven days after the conclusion of such proceedings.
(2) No employer carrying on any public utility service shall lockout any
of his workmen-
(a) without giving them notice of lock-out as hereinafter provided, within
six weeks before locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice
as aforesaid; or
(d) during the pendency of any conciliation proceedings before a
conciliation officer and seven days after the conclusion of such proceedings.
(3) The notice of lock-out or strike under this section shall not be
necessary where there is already in existence a strike or, as the case may,
lock-out in the public utility service, but the employer shall send intimation
of such lock-out or strike on the day on which it is declared, to such
authority as may be specified by the appropriate Government either generally
or for a particular area or for a particular class of public utility services.
(4) The notice of strike referred to in sub-Section (1) shall be given by
such number of persons to such person or persons and in such manner as may be
prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given
in such manner as may be prescribed.
(6) If on any day an employer receives from any persons employed by him
any such notices as are referred to in sub-section (1) or gives to any person
employed by him any such notices as are referred to in sub-Section (1), he
shall within five days thereof report to the appropriate Government or to such
authority as that Government may prescribe, the number of such notices
received or given on that day.
23. General prohibition of strikes and lock-outs.- 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 lock-out-
(a) during the pendency of conciliation proceedings before a Board and
seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or
National Tribunal and two months after the conclusion of such proceedings.
(bb) during the pendency of arbitration proceedings before an arbitrator
and two months after the conclusion of such proceedings, where a notification
has been issued under sub-section (3-A) of Section 10-A; or
(c) during any period in which a settlement or award is in operation in
respect of any of the matters covered by the settlement or award.
24. Illegal strikes and lock-outs.- (1) A strike or lock-out shall be
illegal if –
(i) it is commenced or declared in contravention of Section 22 or Section
23; or
(ii) it is continued in contravention of an order made under subsection (3)
of section 10 or sub-section (4-A) of Section 10-A.
(2) Where a strike or lock-out in pursuance of an industrial dispute has
already commenced and is in existence at the time of the reference of the
dispute to a Board, an arbitrator, a Labour Court, Tribunal or National
Tribunal, the continuance of such strike or lock-out shall not be deemed to be
illegal, provided that such strike or lock-out was not at its commencement in
contravention of the provisions of this Act or the continuance thereof was not
prohibited under subsection (3) of Section 10 or sub-Section (4-A) of Section
10-A.
(3) A lock-out declared in consequence of an illegal strike or a strike
declared in consequence of an illegal lock-out shall not be deemed to be
illegal.
11. Sub-Section (1) of Section 22 of the Act prohibits the strike
enumerating the four conditions and, as rightly pointed out by Ms. Vaigai,
the prohibition should come in either of the said four clauses and not on a
composite reading of the clauses. If the strike notice satisfies either of
the conditions stated in clauses (a) to (d) of Section 22 (1), the strike
cannot be prohibited and consequently, cannot be termed illegal. As the
strike notice has been given on 5.3.2003, the prohibition contained in clause
(b) of Section 22 (1) is inapplicable. It does not matter if six weeks does
not expire, which is the condition in clause (a) thereof. Clause (c) of
Section 22 (1) is also inapplicable. We have to then consider only regarding
the applicability or otherwise of the prohibition contained in clause (d). We
will deal with the same as the contention No.1 Before that, dealing with the
second contention raised by Mr. Somayaji, learned senior counsel, we accept
the argument of Ms. Vaigai that any and every conciliation proceeding or
industrial dispute cannot be a bar for going on strike. Section 23 of the Act
has got no such comprehensive application. The prohibition contained in
Section 23 of the Act has to be confined only to that conciliation proceeding
or industrial dispute relating to a particular issue for adjudication and the
issue pending adjudication in industrial dispute pursuant to the order dated
22.10.2002 passed in W.A. No.3118 of 2002 is only relating to self lease
rental and thus cannot be read as a bar for going on strike on other issues
and the issue/demand, which is presently raised by the respondents 1 and 2
along with other workers’ union, is totally unrelated to the pending
Industrial Dispute. Hence, we are of the considered view that unless the
strike is banned within the meaning of clause (d) of Section 22 (1), the same
cannot be termed illegal attracting Section 24 of the Act.
12. To adjudicate this issue, a reading of the strike notice and
annexures thereto is necessary and they are as follows:
"PETROLEUM EMPLOYEES' UNION
(Regd. No.30/MDS)
President: Communication Address:
N.G.R. Prasad General Secretary, PEU.,
Advocate. Bharat Petroleum
Corporation Ltd.
1, Ranganathan
Gardens,
Secretary General: Anna Nagar (West),
Chennai - 40.
T.S. Rengarajan Phone : 621 6869
Extn.: 2040 & 2110
General Secretary:
P.S. Janardhan
REF: PEU/M/11/2003 Date: 05.03.2003
The Chairman & Managing Director,
Bharat Petroleum Corporation Limited,
Bharat Bhavan I,
Mumbai - 400 001.
Respected Sir,
Sub: Strike Notice
Gravely concerned by the Disinvestment Policy of the Government of India with
regard to M/s.BPCL & M/s.HPCL respectively, the Trade Unions in the Oil
Industry (BPCL & HPCL in particular) created a National United Forum to
express our strong and emphatic disapproval to the Government in the matter of
privatisation of these two huge profit making Corporations. It was decided in
the meeting held on 27.2.2003 at New Delhi that all workmen both in Refining
and Marketing activities of M/s.BPCL and M/s.HPCL would go on strike for 3
days from 25.3.03 6 A.M. to 28.3.03 6 A.M. to press their demands mentioned
in the annexure.
Please take note of this treating this as a notice of strike. In this
connection, we enclose a copy of the Strike Notice addressed to the Hon’ble
Minister for Petroleum and Natural Gas duly signed by various Trade Unions
including our union P.E.U (BPC Unit) for your information and records.
Thanking you,
Yours faithfully,
For Petroleum Employees’ Union (BPC Unit)
Sd/-
P.S. JANARDHANAN
GENERAL SECRETARY”
"The Hon'ble Minister February 27, 2003. Petroleum and Natural Gas Government of India 201-A, Shastri Bhavan New Delhi - 1100 001 Fax: 011-2338 6118 Dear Sir, Sub: Notice of Strike
In accordance with the provisions contained in sub-section (1) of Section 22
of the Industrial Disputes Act, 1947, we the undersigned trade unions
functioning in Hindustan Petroleum Corporation Limited ( HPCL) and Bharat
Petroleum Corporation Limited (BPCL), hereby give you notice that the workmen
of HPCL and BPCL working in the Refineries, Marketing Establishments and all
other offices all over the country shall go on strike from 6.00 A.M. of 25th
March 2003 to 6. A.M. of 28th March, 2003 for the reasons explained in the
annexure.
Thanking you,
Yours sincerely,
Sd/- Sd/-
Petroleum Workmens Union, BPCL Refinery Petroleum Workers Union, Chennai
Mumbai.
Sd/- Sd/-
Bharat Petroleum Technical & Non Technical Petroleum Employes Union
(BPCL),
Employees Association, Refinery, Mumbai Chennai.
Sd/- Sd/-
Bharat Petroleum Karmachari Union, Mumbai Petroleum Employees
Association
(BPCL), Cochin.
Sd/- Sd/-
Maharashtra General Kamgar Union, Mumbai All India Petroleum Workers
Union
(HPCL), Mumbai.
Sd/- Sd/-
BPC Employees Union (CITU), Uran, Mumbai Hindustan Petroleum Karmachari
Union, Mumbai
(Refinery)
Sd/- Sd/-
Bharat Petroleum Corp. (R) Employees Union, Hindustan Petroleum Karmachari
Mumbai. Union, Mumbai (Marketing)
Sd/- Sd/-
Bharat Petroluem Process Technician & Petroleum Workers Union (HPCL)
Analyst Union, Refinery, Mumbai Kolkatta.
Sd/- Sd/-
Bharatiya Kamgar Karmachari Mahasangh, Bengal Oil & Petrol Workers
Union
Mumbai (BPCL & HPCL Refinery) (HPCL), Kolkata
Sd/- Sd/-
Petroleum Workers Union (BPCL), Hindustan Petroleum Employees
Kolkatta. Union, Delhi.
Sd/- Sd/-
Bengal Oil & Petrol Workers' Union, Petroleum Workers Union, HPCL
Kolkatta, BPCL Unit, Delhi.
Sd/- Sd/-
Bharat Petroleum Technician Union, Petroleum Employees
Union (HPCL)
Delhi Chennai.
Sd/- Sd/-
Petroleum Workers Union, BPCL Unit Petroleum Workers Association
( HPCL)
Delhi Cochin.
Sd/- Sd/-
HPCL Employees Union (CITU), Visakh Petroleum Workers' Union,
Visakh
Refinery (Circular notice dt. 3/2/03) Refinery (Ref date of
earlier notice
dt 3/2/03)"
"ANNEXURE TO STRIKE NOTICE"
The strike is in opposition to and demanding reversal of the decision of the
Government of India to privatise Hindustan Petroleum Corporation Ltd., through
strategic sale and Bharat Petroleum Corporation Ltd. Through Initial Public
Offerings including in the international market. The trade unions are of the
considered opinion that the privatisation of the consistently profit making
navaratna oil PSUs shall cause immense harm to the economy and the people of
the country and of course, the employees of these two oil PSUs.
HPCL and BPCL came into being under two different acts of Parliament. The SSO
(acquisition of undertakings in India) Act of 1974 created HPCL and the Burma
Shell (acquisition of undertakings in India) Act of 1976 created the BPCL.
The identical preamble of both the acts clearly reflects the strategic
national importance, which prompted nationalisation of the foreign oil
companies and continues to be valid unquestionably. The preambles mentions,
“it is expedient in the public interest to acquire ownership of these
companies, in order to ensure that the ownership and control of petroleum
products distributed and marketed in India by these companies are ves ted in
the state and thereby so distributed as best to sub-serve the common good”
13. While the strike notice dated 5.3.2003 itself does not refer to the
provisions of Section 22 of the Act, the basis of the strike notice stated is
the notice previously issued to the Minister for Petroleum and Natural Gas,
Government of India, dated 27.2.2003 and it is crystal clear that all the
Trade Unions, who are the signatories, have given a strike notice in
accordance with the provisions contained in sub-Section (1) of Section 22 of
the Act. We need not take further strains to probe into the matter as to
whether it relates to Section 22 of the Act or outside the same. The dispute
is very much within the realm of Industrial Disputes Act, 1947 as the strike
notice has been given as contained in Section 22 (1) of the Act and as a
necessary corollary, the conditions enumerated therein have got to be
followed. The appellant Management has promptly referred the matter to the
Conciliation Officer as is borne out by the following communication and the
strike notice, which has been issued to the Union Ministry of Petroleum and
which was forwarded to the appellant Management, was also enclosed to the
above communication dated 10.3.2003.
BHARAT PETROLEUM CORPORATION
LIMITED
1, Ranganathan Gardens, Off 11th Main Road,
Anna Nagar,
Post Bag No.1212 & 1213,
Chennai – 600 040.
Phone 6216869 HRS.S.STR.CON 10.3.2003
The Regional Labour Commissioner (Central)
Office of the Regional Labour Commissioner (C)
No.26, Haddows Road, Shastri Bhavan,
CHENNAI – 600 006.
Dear Sir,
STRIKE NOTICE ISSUED BY PETROLEUM EMPLOYES UNION (PEU) CHENNAI : PROPOSED
STRIKE FROM 25.3.2003 TO 27.3.2003
——–
Petroleum Employees’ Union, Chennai, has vide their letter Ref.PEU/M/ 11/2003
dated 5.3.2003 issued a strike notice stating that PEU proposes to go on
strike from 25.3.2003 to 27.3.2003 against Govt. of India’s disinvestments
policy with regard to BPC and HPC. Enclosed is a copy of the strike notice
for your information and necessary action.
Yours faithfully,
for BHARAT PETROLEUM CORPN. LTD.
Sd/-
T.SOMANATH
DGM (HRS) SOUTH
encl: as above”
14. Then the Regional Labour Commissioner concerned has acted upon the
same in accordance with Section 12 of the Act and his communication is as
follows:
No.B.8 (45)/2002.RI.C.PA
Government of India
Ministry of Labour
Office of the
Regional Labour Commissioner,
(Central), Shramraksha Bhawan,
Sion, Mumbai – 400 022.
Dated: March 11, 2003
The Executive Director HR.
Bharat Petroleum Corporation Limited,
Bharat Bhawan, 4&6, Corimbhoy road,
Mumbai-38.
Petroleum Employees Association (BPCL),
Cochin
C/o BPCL
Petroleum Workers Union, Chennai
C/o BPCL
Bengal Oil & Petrol Workers’ Union,
Kolkatta, BPCL
C/o BPCL
Petroleum employees Union (BPCL), Chennai
C/o BPCL
Sub: strike Notice served by the Unions Operating in BPCL over the government
policy on disinvestments of Hindustan petroleum corporation limited
and BPCL
Dear Sir(s),
This is to inform you that I shall hold Conciliation Proceedings under
Section 12 of Industrial Dispute Act, 1947, in the above mentioned industrial
dispute in this office on 20.3.2003 at 11.00 hrs and 1100 hrs with a view to
bring about an amicable settlement on this dispute. You are, therefore,
requested to attend the Conciliation Proceedings/Joint Discussions either in
person or through a duly authorised representative with all-relevant records
and documents and evidence oral/documentary. Please note that if you fail to
attend the conciliation/discussions without reasonable cause in advance of the
aforesaid date, the dispute shall be proceeded ‘ex parte’.
In this connection, your attention is invited to the obligations
imposed under Section 22 (1), 22 (2) and 33 of Industrial Disputes Act, 1947.
Your written comments on the issue raise by the Union/Workman (copy
enclosed), be furnished to this office with a copy to the Union/ Workman. The
comments (in five copies) and the following particulars may be sent to this
office by 17.2.2003 as it would facilitate prompt disposal of the case.
(a) No. of workman in the concern/establishment.
(b) No. & occupation of workmen affected by this dispute.
(c) Whether any of the demands are covered by the provisions of any other
legislation or settlement or award.
Yours faithfully,
Sd/-
(M.P.M. Sivakumar)
Regional Labour Commissioner
(Central), Mumbai.
15. The said notice having been served on both the parties and the
appellant and respondents 1 and 2 having participated in the conciliation
proceedings, which was firstly set on 20.3.2003, then adjourned at the
instance of the respondents 1 and 2 to 24.3.2003 and again adjourned, it
cannot lie in the mouth of the respondents 1 and 2 to plead contra that the
matter is not within the realm of the Industrial Disputes Act, 1947. Even the
pleading to that effect by the appellant cannot have any legal basis as the
reference has been made by the appellant to the Conciliation Officer and the
strike notice issued by the respondents 1 and 2 and both the parties are bound
by the conciliation proceedings and the effect thereof and they have to wait
till the Conciliation Officer takes his decision one way or the other.
16. In view of the above, we hold that the conciliation
proceedings are pending relating to the issue for which strike notice has been
given and as the conciliation proceedings are pending, the prohibition
contained in clause (d) of sub-Section (1) of Section 22 of the Industrial
Disputes Act, 1947, came into operation right from the date of the notice of
Conciliation Officer and as such, the strike by the respondents 1 and 2 is
illegal in view of Section 24 of the Act.
17. Ms. R. Vaigai, learned counsel, then raised yet another
contention regarding the maintainability of the writ petition against the
respondents 1 and 2, who are the employees union on the ground that they
cannot be termed as ‘other authorities’ within the meaning of Article 12 of
Indian Constitution. In support of her contention, she has cited the
judgments of the Supreme Court in (i) SOM PRAKASH REKHI v. UNION OF INDIA
(1981) 1 S.C.C. 449), (ii) BANK OF INDIA v. T.S. KELAWALA (1990) 4 S.C.C.
744) and (iii) VST INDUSTRIES LTD v. VST INDUSTRIES WORKERS’ UNION (2001) 1
S.C.C. 298) as also a decision of the Kerala High Court in (iv) CHEMOSYN (P)
LTD. V. KERALA MEDICAL AND SALES REPRESENTATIVES’ ASSOCIATION (1988 (2)
L.L.J. 43).
18. In SOM PRAKASH REKHI’s case (cited (i) supra), a question
arose as to whether Bharat Petroleum Corporation is a State within the meaning
of Article 12 of Constitution of India. It was held that the said Corporation
comes under the control of the Government of India and as such, is a State
within the meaning of Article 12. In fact, the facts of the above case have
got no bearing on this case as a claim was made against the Burma Shell Oil
Storage Limited, which, later on, became Bharat Petroleum Corporation,
claiming terminal benefits, which were withheld and which were sought to be
reduced and when the same were sought to be enforced, a contention was raised
as to whether a writ is maintainable against the said employer. It was held
that the employer therein, in fact who is the appellant herein, is amenable to
writ jurisdiction.
19. In the case of BANK OF INDIA (cited (ii) supra), it was held
by the Supreme Court that the working class has indisputably earned the right
to strike an industrial action after a long struggle so much so that the
relevant industrial legislations recognise it as their implied right. But the
Supreme Court also held that the legislation, i.e. Industrial Disputes Act in
the instant case and there also, circumscribes the said right by fixing
certain conditions under which alone its exercise may become legal and that a
legal strike may not invite disciplinary proceedings while an illegal strike
may do so it being a misconduct. The legal principles enunciated in the above
Supreme Court judgment fully support the limitations which are placed by the
Industrial Disputes Act against the strike so far as the employees are
concerned and against the lock outs so far as the employers are concerned.
There are checks and balances under Section 22 of the Act and also the
consequences so clearly stated in Section 24 of the Industrial Disputes Act.
A strike, which is violative of sub-Section (2) of Section 22 of the Act, is
illegal under Section 24 of the Act and also the lock-out against sub-Section
(2) of Section 22 of the Act by the employer is equally illegal under Section
24.
20. The third decision in VST INDUSTRIES’s case (cited (iii)
supra) deals with the amenability of a company, incorporated under the
Companies Act, to writ jurisdiction under Article 226 of Constitution of
India. In the said case, the dispute was as to whether the employees in the
canteen of a company can be considered as employees of the company itself and
whether a writ can be maintained directing the company to treat those
employees as its employees. In fact, the facts are in a different context and
the only issue was as to whether the company, incorporated under the Companies
Act and not performing any public duty, can be made amenable to writ
jurisdiction. Nevertheless, having regard to the repercussions involved, the
Supreme Court did not disturb the judgment of the High Court which had issued
a writ as sought for.
21. In so far as the judgment of the Kerala High Court in
CHEMOSYN’ s case (cited (iv) supra) is concerned, it was held that a Trade
Union, registered under the Trade Unions Act, 1926, is not amenable to writ
jurisdiction as a trade union does not come within the definition of ‘other
authorities’ under Article 12 of Constitution. But the facts therein are
totally different from the instant one. There, the employer is a company and
the respondent is the Association of Kerala Medical and Sales Representatives
and as the members of the said Association, who had been deputed for training,
went on leave defying the instructions and when the writ petition was filed to
direct the Association to desist its members from indulging in any illegal
activities, it was held that such a relief cannot be granted. The same cannot
have any bearing on this case.
22. In ANDI MUKTA S.M.V.S.S.J.M.S. TRUST v. V.R. RUDANI (1989)
2 S. C.C. 691), an adjudication was made not in the context of Article 12
read with Article 32 of the Constitution but in the context of Article 12 read
with Article 226 of the Constitution. In paragraph 20 of the judgment, it is
held,
“The term ‘authority’ used in Article 226, in the context, must receive a
liberal meaning unlike the term in Article 12. Article 12 is relevant only
for the purpose of enforcement of fundamental rights under Article 32.
Article 226 confers power on the High Courts to issue writs for enforcement of
the fundamental rights as well as nonfundamental rights. The words ‘any
person or authority’ used in Article 22 6 are, therefore, not to be confined
only to statutory authorities and instrumentalities of the State. They may
cover any other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature of the
duty imposed on the body. The duty must be judged in the light of positive
obligation owed by the person or authority to the affected party. No matter
by what means the duty is imposed, if a positive obligation exists, mandamus
cannot be denied.”
23. This judgment was referred to by the Supreme Court in VST
INDUSTRIES’ case (cited (iii) supra) and has not been disapproved. Here, the
respondents 1 and 2, which are the registered bodies under Trade Unions Act,
are legal persons and owe a duty under the statute, the provisions of which
have been mentioned supra, not to go on strike unless the provisions of
sub-Section (1) of Section 22 of the Act are complied with. The Parliament
has properly thought of imposing restrictions on the employees from striking
the work enumerating the conditional prohibitions. That apart, Section 22,
including Section 24, of the Industrial Disputes Act is still on the statute
book and has not been declared ultra vires the Constitution and as the right
to strike a work is regulated by the statute and as the statutory duty has not
been followed by the respondents 1 and 2 and as the respondents 1 and 2 would
have been entitled to challenge if any illegal lock-out has been declared by
the employer, equally the appellant Corporation also is entitled to seek
enforcement of the statutory prohibition imposed upon the respondents 1 and 2
from striking the work as it is in utter disregard and violation of clause (d)
of sub-Section (1) of Section 22 of the Industrial Disputes Act.
24. In the circumstances, the Writ Appeal and Writ Petition are
allowed. No costs. Consequently, connected W.A.M.Ps. and W.P.M.Ps. are
closed.
(B.S.R., CJ) (D.M., J)
bh/
Internet : Yes
LR Entry : Yes
To
1. Petroleum Employees Union,
rep. By its General Secretary,
P.S. Janardhanan,
Guruswamy Buildings,
6, Kachaleeswarar Street,
CHENNAI - 600 01.
2. Petroleum Workers Union,
rep. By its General Secretary,
G. Saravanan,
35, Vaidyanathan Street, Tondiarpet,
CHENNAI.
3. The Regional Labour Commissioner,
Mumbai.
4. Regional Labour Commissioner (Central),
Shahstri Bhavan, Haddows Road,
CHENNAI.