JUDGMENT
Baboo Lall Jain, J.
1. This is an appeal preferred by Life Insurance Corporation of India and Ors. from the judgment of PC. Borooah, J. delivered on August 25th, 1982, pursuant to the application made by Amalendu Gupta and others. The said Amalendu Gupta and Ors. made an application under Article 226 of Constitution of India inter alia praying that a writ in the nature of Mandamus be issued, directing Life Insurance Corporation of India (hereinafter also referred to for the sake of brevity as ‘LIC’) to cancel the circulars and/or orders dated 16th April 1981 and 23rd April 1981 issued by the Senior Divisional Manager, LIC Calcutta Divisional Office. The said Amalendu Gupta and Ors. (hereinafter also referred to as ’employees’) also prayed that the LIC be directed to refund and/or restore 14 days’ wages and allowances deducted by the LIC from the April, 1981 salaries of the Class III and Class IV employees of the LIC. A rule was issued pursuant to the said application and affidavits were also filed on behalf of the parties.
2. The learned Judge after hearing the said application of the employees, made the Rule absolute and quashed the said circulars dated 16th April, 1981 and 23rd April, 1981. The Learned Judge also directed LIC to pay the concerned employees, the salaries for the strike period together with the interest at 12% per annum. The LIC of India and Ors. have appealed from the said Judgment and Order of the Learned Judge, inter alia on the ground that the employees were not entitled to demand wages for the period when they refused to work. It has also been contended that the strike was illegal and unjustified and that even if the strike was legal or justifiable, then also wages for the strike period are not permitted since the employees refused to work. It has further been urged on behalf of the LIC. that the employees in any event cannot invoke Article 226 of the Constitution of India, for realising the wages for the period of strike and they should have raised a dispute under Section 10 of the Industrial Disputes Act if they desired to claim the same and there being an alternative and effective remedy they could not come to this Court in its Constitutional Writ Jurisdiction. It has also been urged that whether the strike was justifiable or not is a question of fact which could not conveniently be decided under the writ jurisdiction of this Court. The contention on behalf of the employees has been that this was a justified and legal strike and that in a case like this the Learned Judge was perfectly justified in making an order for payment of the wages for the strike period.
3. The facts of the case are as hereunder:
The Respondents No. 1 and 2 are the permanent class III employees and the respondent No. 3 is a permanent class IV employee of the Life Insurance Corporation of India. The respondent No. 4 is the Federation and registered Union of the said employees. There was a bipartite settlement dated 24th January 1974 under Section 18(1) of the Industrial Disputes Act 1947 (hereinafter referred as ‘the said Act’), between the LIC. and the All India Insurance Employees Association representing Class III and Class IV employees of the LIC. Under the said settlement LIC was to pay annual cash bonus to their Class III and Class IV employees, at 15% of their annual wages inclusive of all allowances. This settlement was to continue for a period of 4 years, i.e. from April 1973 to 31st March 1977. On 25th September 1975 an ordinance was promulgated, called Payment of Bonus (Amendment) Ordinance 1975. On 26th September 1975 LIC issued a circular to the effect that payment of bonus was under review in view of the Ordinance. As the LIC failed to pay bonus in terms of the settlement, the employees made an application to this Court under its Constitutional Writ Jurisdiction. By and under the judgment delivered on 21st May, 1976 in the said matter being Matter No. 371 of 1976 (since reported in 1977 I LLJ. 415, the appellant was directed to pay the bonus which had till then become due and payable to the said employees in terms of the settlement. On 27th May, 1976 the appellant issued a purported notice of termination of the settlement dated 24th January, 1974 under the provisions of Section 19(2) of the said Act and also purported to amend the staff regulations relating to bonus. On 29th May 1976, the LIC (Modification of Settlement) Act 1976 (Act 72 of 1976) came into force with retrospective effect from 25th September 1975. The said Act was challenged before the Hon’ble Supreme Court by the employees of LIC. Hon’ble Supreme Court declared the said Act to be void as offending Article 31(2) and directed payment of annual cash bonus for the years 1975-76 and 1976-77, according to settlement of 1974. This judgment has been reported in 1978 I LLJ. 406 Madan Mohan Pathak v. Union of India. In March 1978 LIC issued notice under Section 9A of the Industrial Disputes Act, to change the conditions of service relating to annual cash bonus. In May 1978, LIC amended LIC (Start) Regulation No. 58 under Section 49 of LIC Act in the matter of annual cash bonus. On 26th May 1978 Govt. of India issued a notice under Section 11(2) of the LIC Act, amending the provision of annual cash bonus. The actions of the LIC, and the Govt. of India were challenged by the employees and the matter ultimately went up to the Supreme Court. The Supreme Court by a judgment delivered on 10th November 1980 directed the LIC to pay annual cash bonus to their Class III and Class IV employees in terms of the 1974 settlement relating to annual cash bonus. This judgment has been reported in 198 I LLJ 1. When in spite of the directions or orders of the Supreme Court the LIC failed to pay the bonus, a contempt application was filed and the Supreme Court on 18th January 1981 passed the following order:
Learned Attorney General who appears on behalf of the Life Insurance Corporation of India has made a statement before us that the order passed by this Court in its Judgment dated November 10, 1980 shall be complied with before April 15, 1981. We may add that this Order will naturally be subject to the result of the Review Petition, Stay petition filed along with the Review Petition is rejected. Review petition be circulated to Court.
It may be added here that in the meantime the Appellant had also filed a review petition.
On 31st January 1981 the Life Insurance Corporation Amendment Ordinance (No. 3 of 1981) was promulgated amending Sections 48 and 49 of the Life Insurance Corporation Act, 1956. Acting under the said Ordinance the Central Government framed Life Insurance Corporation of India Class III and Class IV Employees’ (Bonus & D.A.) Rules, 1981 taking away their right to receive annual cash bonus from 1st July 1979 and imposing a ceiling on D.A. from 2nd February 1981.
The contempt Matter again came up before the Supreme Court on 26th February 1981 when the Supreme Court was pleased to pass the order which has been set out in paragraph 16 of the writ petition.
When in spite of the repeated orders of the Supreme Court the respondent No. 1 failed and neglected to pay the bonus in accordance with the 1974 agreement, the respondent No. 4 issued a notice to the Appellant for going on strike on and from 2nd April 1981. The strike notice has been set out in paragraph 23 of the writ petition.
On 17th March 1981 the Supreme Court rejected the appellant’s petition for review of the Supreme Court’s earlier order and on the next date, the Senior Divisional Manager of the respondent No. 1 issued instructions to all Heads of Departments, Senior Branch Managers and Branch Managers not to grant any leave other than casual leave and maternity leave in view of the proposed strike of the employees. A copy of these instructions is included in Annexure ‘F’ to the petition.
The Ordinance promulgated on 31st January 1981 as well as the purported Notification issued on 2nd February 1981 were both challenged on behalf of the Class III and Class IV employees of the appellant in the Supreme Court and both the LIC as well as the Central Government were restrained by an order dated 30th March 1981 from giving effect to the said Notification issued on 2nd February 1981 in so far as the same relates to the payment of annual cash bonus to Class III & Class IV employees. On 2nd April 1981 the Supreme Court passed the following order:
M/s. M.K. Ramamurthi, R.K. Garg, Vimal Deve and A.K. Goel on behalf of the petitioners give an undertaking to this Court that in the event of the writ petitioners failing the Corporation would be entitled to make adjustments from the future emoluments payable to the petitioners in case any over payment is made to them in terms of the agreement dated 24th January 1974 and 6th February 1974, The interim order made on 30th March, 1981 will continue until further order.
When in spite of the various orders of the Supreme Court referred to above the LIC still did not pay the bonus which became due and payable to the Class 111 and Class IV employees, the said employees went on strike as per their notice already given on and from 2nd April 1981.
The strike was recalled and the concerned employees went back to work, when the Supreme Court passed the order on the aforesaid writ petition, filed on behalf of the employees, on 15th April 1981, directing the respondent No. I to make the payments within one week from the date.
Thereafter on 16th April 1981 the respondent No. 1 issued a Circular to the Divisional Manager (Accounts) of the Calcutta Divisional Office and all Senior Branch Managers and Branch Managers of all Branch Offices under the Calcutta Division inter alia, to the effect that the period of strike by Class III and IV employees, will have to be treated as unauthorised absence on loss of pay and accordingly salary for the duration of the strike will have to be deducted on proportionate basis and the deduction would be effected from the salary payable for the month of April, 1981. A copy of this Circular is Annexure ‘C’ of the Writ Petition.
Then on 23rd April 1981 the Assistant Divisional Manager (Personnel) issued a Circular to the Divisional Manager (Accounts) and other Officers under the Calcutta Division reproducing the next Teleprinter message received that apart from the deduction of salary for the strike period for the month of April 1981 the P.F. contributions and the House Rent Allowance should also be adjusted for the said period. A copy of this Circular is Annexure ‘D’ to the petition.
4. In this application under Article 226 of the Constitution the petitioners have prayed for appropriate writs commanding the LIC to rescind and cancel the two aforesaid circulars being Annexures ‘C’ and ‘D’ to the petition. The LIC. was neglecting and/or refusing to pay the bonus which was due and payable to the Class III and Class IV employees in terms of the 1974 settlement, in spite of the fact that the concerned employees had been getting orders in their favour for payment of bonus not only from this Court but also from the Supreme Court. In the premises the employees gave a notice for calling a strike in accordance with the rights given to them under the Act. As regards the rights of the employees to receive the bonus in terms of the said settlement reference may be made to the decision of the Supreme Court, in the case of A.V. Nachane and Ors. v. The Union of India and Ors. reported in 1982 I LLJ 110 wherein the Supreme Court observed as follows at 121-122:
The 1974 settlements provided, among various other matters, for the payment of annual cash bonus (not a profit sharing bonus) to their Class III & Class IV employees at the rate of 15 per cent of the annual salary. The settlements were to be operative from 1st April, 1973 to 31st March, 1977. That the settlements were to be operative from 1st April. 1973 to 31st March, 1977 did not mean that the settlements would cease to be effective peremptorily from 1st April 1977 and, therefore, the annual cash bonus stipulated under the settlements would cease to be payable from that date onwards. The settlements would continue to be binding even after 31st March 1977 and would not be liable to be terminated by the issuance of a unilateral notice by the employer purporting to terminate the settlements. The settlements would cease to be effective only when they were replaced by a fresh settlement, an industrial award or relevant legislation. This is the law and this was what the law was propounded to be in Life Insurance Corporation of India v. D.J. Bahadur 1981 I LLJ 1 on a consideration of the relevant provisions and precedents.
The attempt made to supersede the settlements, in so far as they related to the payment of bonus, by enacting the Life Insurance Corporation (Modification of Settlement) Act, 1976 failed, firstly because the Act was held to violate the provisions of Article 31(2) of the Constitution and secondly because the Act could not have retrospective effect so as to absolve the Life Insurance Corporation from obeying the writ of mandamus issued by the Calcutta High Court, which had become final and binding on the parties. This was the decision of this Court in Madan Mohan Pathak v. Union of India 1978 I LLJ 406, all the seven judges who constituted the Bench agreeing that the Act violated the provisions of Article 31(2) and four out of the seven Judges, namely Beg., C.J. Bhagwati, Krishna Iyer and Desai JJ., taking the view that the Act did not have the effect of nullifying the writ of mandamus issued by the Calcutta High Court and the other three Judges, Chandrachud, Fazal Ali and Shinghal, JJ., preferring not to express any view on that question.
The second attempt to nullify the 1974 settlements in regard to payment of bonus, by issuing notices under Section 19(2) and Section 9A of the Industrial Dispute Act and by amending the Standardization Order and the Staff Regulations was frustrated by the Judgment of this Court in Life Insurance Corporation of India v. D.J. Bahadur (supra), the Court taking the view that the two settlements could only be superseded by a fresh settlement, an industrial award or relevant legislation. In this case, the Court issued a writ to the Life Insurance Corporation to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation.
The effect of the two judgments in Madan Mohan Pathak’s case (supra) and D.J. Bahadur’s case (supra) was clear; the settlements of 1974, in so far as the they related to bonus, could only be superseded by a fresh settlement, an industrial award or relevant legislation. But any such super session could only have future effect, but not retrospective effect so as to disentitle the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day, and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D.J. Bahadur’s case. The present attempt made by the 1981 Amending Act and the Rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail. The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and IV Employees (Bonus and Dearness Allowance) Rules, 1981.
5. The employees went on strike after serving a notice of the proposed strike in accordance with the provisions of the Act, as the strike was the only weapon left in the hands of the employees, when the appellant repeatedly failed to comply with the repeated orders of the Supreme Court and also an order of this High Court.
6. Mr. Bholanath Sen appeard on behalf of the appellants in support of the appeal and inter alia contended that under the common law a workman is entitled to wages only for the period he actually works for his employer and there is no provision under any law which casts a statutory obligation on an employer to pay a workman wages for the period the workman goes on strike, and as such, this Court’s powers under Article 226 of the Constitution cannot be invoked by the workmen of the LIC to compel LIC to pay the striking employees their salaries for the period they went on strike. Mr. Sen has further submitted that the right to go on strike has been created under the provisions of the Industrial Disputes Act and if the workman after resorting to a strike seeks any remedy, that remedy should be sought within the four corners of the Act and not by taking recourse to this Court’s jurisdiction under Article 226 of the Constitution. In this connection Mr. Sen drew our attention to a decision of the Supreme Court in the case of The Premier Automobiles Ltd. v. Kamlakar Shanteram Wadke and Ors. reported in 1975 II LLJ 445 where the Supreme Court held that if the industrial dispute relates to the enforcement of a right or an obligation created under the Industrial Disputes Act, then the only remedy available is to get an adjudication under the provisions of the said Act.
6. That case, it may be observed, did not relate to the ambit of the jurisdiction under Article 226 of the Constitution. Mr. Sen also drew our attention to the decision of the Supreme Court in the case of Basanta Kumar Sarkar and Ors. v. Eagle Rolling Mill reported in 1964 II LLJ 105.wherein the Supreme Court held that although the powers conferred on the High Court under Article 226 are very wide they could not take in within this sweep industrial dispute of the kind which the contention of the workmen sought to raise in that case. In that case the Supreme Court held that the proper remedy which was available to the workmen was to take recourse to Section 10 of the Industrial Disputes Act or seek relief under Sections 74 and 75 of the Act.
Mr. Sen next drew our attention to a notice dated 31st March 1981 issued by the Chief (Personnel) Officer of the appellant at Bombay to all employees of the Corporation in response to the notice of continuous strike from 2nd April 1981. A copy of this notice is Annexure ‘A’ to the affidavit in opposition filed by Sri Hiralal Sil, the Administrative Officer of the appellant on 25th May 1982. Mr. Sen has in particular drawn our attention to paragraph 4 of the said notice which is in the following terms:
If in spite of the above, the employees choose to go on continuous strike in response to the call given by the aforesaid Unions or otherwise, they will render themselves liable to the following:
i) the period of strike will be treated as unauthorised absence.
ii) The employees who participate in the strike will not be entitled to receive any wages for the duration of the strike on the principle of ‘no work no pay’.
iii) employees who are on probation either on entry as new recruit or on probation, the probationary period will be extended.
With reference to this notice Mr. Sen contended that before they went on strike the employees were fully aware that they would not be entitled to receive any wages for the strike period on the principle of ‘no work no pay’ and after having gone on strike in spite of the warning given in the said notice they cannot come before this Court and ask for quashing of the two impugned circulars. In this connection Mr. Sen drew our attention to a decision of the Supreme Court in the case of Shiv Singh v. Union of India and Ors. reported in (AIR) 1973 SC 963, where the Supreme Court made the following observations:
As regards the effect of participation in the strike on promotional prospects, there were several orders by different authorities. It is not necessary to mention every one of them. Notice may be taken of two orders. On June 16, 1969, the Director General, Post & Telegraph, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to September 1968 had been found to be satisfactory. The petitioner seeks to rely on this order. But this order was ineffective on account of the Office Memorandum of the Ministry of Home Affairs, issued on October 19, 1968. The Memorandum provided that the adverse entry in the strike would be taken into consideration for promotion or confirmation. All employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Accordingly, the petitioner cannot rely on the order of the Director General. The petitioner obviously became ineligible for promotion as Sub-Inspector on account of the Office Memorandum for a period of five years. So he could not be considered for promotion as Sub-Inspector in July, 1969, when the respondents ‘optees’ and certain other persons were selected as Sub-Inspectors.
7. Mr. Somnath Chatterjee appearing on behalf of the employees-respondents, contended that the Act is a Labour Welfare Legislation which recognises the concept of strike. The Act also contemplates when a strike shall be lawful and when it shall be deemed to be illegal or unlawful. According to Mr. Chatterjee the employees concerned were forced to go on strike after giving notice of the proposed strike in accordance with the provisions of the Act as the strike was the only weapon left in the hands of the employees, when the respondent No. 2 repeatedly failed to comply with repeated orders of the Supreme Court as also an order of this High Court. Mr. Chatterjee further contended, when a strike is lawful and justified, it is not open to the employer to deduct and/or refuse to pay the salary which is due to the employees for the period when they are forced to go on strike to get a redress of legitimate grievances, Mr. Chatterjee also contended by referring to certain decisions as hereinafter referred that this Court exercising powers under Article 226 of the Constitution can direct the respondent No. 1 to pay the workmen the salary for the period they were forced to go on strike and also to strike down the two impugned Circulars.
8. In support of his contention that the employees have a right to go on strike, Mr. Chatterjee relied on the decision of the Court of Appeal in the case of Morgan v. Fry and Ors. reported in (1968) 3 All E.R. 452 at p. 456 where the following observations appear:
It is difficult to see the logical flaw in that argument; but there must be something wrong with it. For if that argument were correct, it would do away with the right to strike in this country. It has been held for over sixty years that workmen have a right to strike (including therein a right to say that they will not work with non-unionists) provided that they give sufficient notice before hand; and a notice is sufficient if it is at least as long as the notice required to terminate the contract.
As regards an employees right to go on strike and to receive the wages for the strike period, if the strike is legal and justified, Mr. Chatterjee has referred to a number of decisions. The first decision is that of the Andhra Pradesh High Court in the case of The Andhra Pradesh State Road Transport Corporation Employees’ Union v. The Andhra Pradesh State Road Transport Corporation Hyderabad reported in 1970 Lab. I.C. 1225, where Chinnappa Reddy J. made the following observations:
Nor am I prepared to hold that a strike, if justified, could be considered an activity subversive of industrial peace or opposed to the lawful objects of Trade Unions. A right to strike is labour’s ultimate weapon and in the course of a hundred years it has emerged as the inherent right of every worker. It is an element which is of the very essence of the principle of collective bargaining and as stated by an eminent English Judge the right to strike is an implication read into the contract by the modern law as to trade disputes.
The next case referred to by Mr. Chatterjee is a decision of the Supreme Court in an appeal filed from an award of the Industrial Tribunal, Alleppey by the Churakulam Tea Estate (P) Ltd. v. Workmen and Anr. reported in 1969 II LLJ 407. In this case the Court held at p. 415 as follows:
Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard is accepted.
The next decision relied on by Mr. Chatterjee is also a decision of the Supreme Court in the case of Gujarat Steel Tubes Ltd, v. Gujarat Steel Tubes Mazdoor Sabha and Ors. reported in 1980 I LLJ 137 where the following observations were made by Krishna Iyer J. at p. 168:
A selective study of the case law is proper at this place. Before we do this, a few words on the basis of the right to strike and progressive legal thinking led by constitutional guidelines is necessitious. The right to unionise, the right to strike as part of collective bargaining and, subject to the legality and humanity of the situation, the right of the weaker group, viz., labour, to pressure to the stronger party viz., capital, to negotiate and render justice, are processes recognised by industrial jurisprudence and supported by Social Justice. While Society itself, in its basic needs of existence, may not be held to ransom in the name of the right to bargain and strikers must obey civilised norms in the battle and not be vulgar or violent hoodlums, Industry, represented by intransigent managements, may well be made to reel into reason by the strike weapon and cannot then squeal or wail and complain of loss of profits or other ill-effects but must negotiate or get a reference made. The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Unions and strikes are no more conspiracies than professions and political parties are, and, being for weaker, need succour. Part IV of the Constitution, read with Article 19, sows the seeds of this burgeoning jurisprudence. The Gandhian quote at the beginning of this judgment sets the tone of economic equity in Industry. Of course, adventurist, extremist, extraneously inspired and puerile strikes, absurdly insane persistence and violent or scorched earth policies boomerang and are anathema for the law. Within these parameters, the right to strike is integral to collective bargaining.
9. Mr. Chatterjee also referred to another decision of the Supreme Court in the case of Crompton Greaves Ltd. v. The Workmen, reported in 1978 II LLJ 80 where the Supreme Court observed at p. 82:
It is well-settled that in order to entitle the workmen to wages for the period of strike the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statute. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case. It is also well-settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitles them to wages for the strike period.
We agree with the Learned Trial Judge that the Industrial Disputes Act is a social welfare legislation, enacted by Parliament for the investigation and settlement of industrial disputes. If an employer denies or refuses to give its workmen some benefit or emoluments to which they are entitled to under the law or under the contract of services with the employer, the Act gives the concerned employees a weapon to force the employer to accede to their demands and give them their legitimate dues. The weapon is a strike which is recognised under the Industrial Disputes Act and has been defined in Section 2(q) as folows:
“Strike” means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.
But before going on strike, the Act lays down cerain formalities. One of the formalities to be observed by a workman before going on strike, has been laid down in Section 22 of the Act which requires the workman to give his employer notice of the strike within 6 weeks before striking and prohibits the workman from going on strike within 14 days of giving such notice. In the instant case, the strike was in accordance with the provisions of the Act because the requisite notice was given and the employees went on strike after the expiry of the statutory period as laid down in Section 22(1)(b) of the Act. Therefore, the strike must be deemed to be legal.
10. The next question that arises for consideration is whether the strike by the concerned employees of the L.I.C. was justified? According to Mr. Sen the question of justifiability of a strike is a pure question of fact which cannot be gone into by this Court. This cannot be an absolute proposition of law. If from the materials on records the circumstances under which an employee is forced to go on a strike, are clear and undisputable, this Court is certainly competent to decide the question. In the instant case, even after the 1974 bipartite settlements and the order of the Calcutta High Court and thereafter even in spite of repeated orders of the Supreme Court, the respondent No. 1, on some pretext or the other, refused and/or neglected to pay to the concerned employees the bonus which was statutorily binding on the parties under the provisions of Section 18(1) of the Act. It is nobody’s case that the employees resorted to any acts of violence or intimidation or violated any civilised norms during the period of the strike or prior thereto. On the other hand the strike was immediately lifted when the outstanding issue of the payment of bonus was finally settled. As such, although the justifiability of the strike had been denied in the affidavit-in-opposition filed by Shri Hiralal Seal the conclusion that the strike was wholly justified becomes inevitable and does not lie in the realm of any doubt.
11. The next and the most important question which now has to be determined is whether this Court can mandate the respondent No. 1 to pay the striking employees their wages for the strike period and also direct L.I.C. not to give effect to the impugned Circulars dated 16th April 1981 and 23rd April 1981?
12. If this Court refuses to exercise its powers under Article 226 of the Constitution and denies reliefs prayed for in this petition, the employees of the respondent No. 1, who have been affected by the impugned circulars and who will number about 45,000 will have to fall back on other remedies which may be available to them under the law. A possible remedy is the initiation of conciliation proceedings under the Industrial Disputes Act and a reference of the issue arising out of the deduction of the salary to an Industrial Tribunal, for adjudication. But the reference of a dispute to an Industrial Tribunal does not lie in the hands of the employees. When the respondent No. 1 and the Central Government took recourse to various measures in order to prevent the employees from getting the bonus in terms of the settlement, it is unlikely that the workmen will get a quick and efficacious relief by taking recourse to the remedies available to them under the Act. We agree with the learned trial Judge that the workmen have already been driven from pilliar to post and in spite of repeated orders of the highest Court of the land, the appellant did not pay them the bonus to which they were legally entitled, till they resorted to the strike. It must also be borne in mind that the workmen immediately called off the strike on 15th April 1981 on receiving an assurance from the appellant that the bonus will be paid.
13. That it is within the powers of the Court to mandate the respondent No. 1 to pay the workmen, the wages for the strike period and to strike down the impugned Circulars will find support from a decision of the Supreme Court in the case of L. Robert D’Souza v. Executive Engineer Southern Railway and Anr. reported in 1982 I LLJ 330. In this case a question arose whether the termination of a service for unauthorised absence from duty by a workman amounts to retrenchment and whether the purportedly retrenched workman is entitled to reinstatement and wages? Although these issues were being adjudicated by a Labour Court and the writ petition was dismissed by the High Court, the Supreme Court allowed the appeal by the workman and observed at p. 343 as follows:
There is no dispute that the appellant would be a workman within the meaning of the expression in Section 2(s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over 20 years. Therefore, the first condition of Section 25F that appellant is a workman who has rendered service for not less than one year under the Railway Administration, an employer carrying on an industry, and that his service is terminated which, for the reasons hereinbefore given, would constitute retrenchment. It is immaterial that he is a daily-rated worker. He is either doing manual or technical work and his salary was less than Rs. 500/- and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterupted service for a period of one year or more within the meaning of Section 25F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid.
Accordingly, we allow this appeal, set aside the order of the High Court and declare that the termination of service of the appellant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at Rs. 2,000/-.
We, therefore, hold that if the strike is legal and justified then the employees are entitled to wages for the period of the strike. In the instant case the strike was legal and justified. The impugned notices dated 16th April, 1981 and 23rd April, 1981 were liable to be, and the Learned Judge rightly, quashed the same. The Court has the power in appropriate cases to direct payments of wages for the strike period if the strike is legal and justified. In the instant case there is sufficient material before this Court to hold that he strike was legal and justifiable and hence the employees are entitled to the payment of the wages for the period of the strike. For the reasons stated above we uphold the decision of the Learned Trial Judge in making the Rule absolute and in quashing the Circulars dated 16th April 1981 and 23rd April 1981 copies whereof are Annexures ‘C’ and ‘D’ to the petition. We also uphold the decisions of the Learned Trial Judge whereby he directed the appellant to pay the concerned employees the salaries for the strike period together with interest at 12% per annum.
14. There is another point to be taken into consideration though not argued from the bar. It appears from the copy of the notice of motion dated 20th September 1982 (pages 151 to 155 of the Paper Book) that an order was passed by the Appeal Court on the 20th September, 1982 in terms of prayers ‘A’ and ‘B’ of the said notice of motion. Prayer ‘A’ of the notice of motion reads as hereunder:
(a) Leave be given to the petitioners to file the Memorandum of Appeal without certified copies of the judgment and Order dated 25th March 1982 passed by the Hon’ble Mr. Justice P.C. Borooah on the following undertakings:
i) To have the order dated 25th August 1982 be drawn up and obtained certified copies of the Judgment and order both dated 25th August 1982 and include the same in the Paper Book.
ii) To have the judgment and/or order to be made herein drawn up and filed and included in the Paper Book.
iii) To include in the Paper Book a List of Dates showing that the Appeal is not barred by the Limitation.
One of the undertakings given to this Court was to the effect that the appellant will include n the Paper Book a list of dates showing that the appeal is not barred by the Limitation. It does not appear from the Paper Book that the appellant has complied with the said under taking. This appeal is in any event liable to be dismissed on this ground alone.
15. The Appeal is therefore dismissed with costs certified for two counsels.
DF.BI SINGH TEWATIA, C.J.
I agree.
D.S. Tewatia