{"id":74838,"date":"2003-03-27T00:00:00","date_gmt":"2003-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-petroleum-corpn-ltd-vs-petroleum-employees-union-on-27-march-2003"},"modified":"2018-08-15T04:35:59","modified_gmt":"2018-08-14T23:05:59","slug":"bharat-petroleum-corpn-ltd-vs-petroleum-employees-union-on-27-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-petroleum-corpn-ltd-vs-petroleum-employees-union-on-27-march-2003","title":{"rendered":"Bharat Petroleum Corpn. Ltd vs Petroleum Employees Union on 27 March, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Bharat Petroleum Corpn. Ltd vs Petroleum Employees Union on 27 March, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 27\/03\/2003\n\nCoram\n\nThe Honourable Mr.B.SUBHASHAN REDDY, Chief Justice\nand\nThe Honourable Mr. Justice D. MURUGESAN\n\nW.A. No.1410 of 2003\nand\nW.A.M.P. Nos.1801 and 1835 of 2003\nand\nW.P. No.8972 of 2003\n\nBharat Petroleum Corpn. Ltd.\nRep. By its Dy. General Manager (HRS) South,\nT. Somnath,\nChennai - 600 040.                      ...     Appellant\/\n                                                Petitioner in WP\n\n-Vs-\n\n1.     Petroleum Employees Union,\n        rep. By its General Secretary,\n        P.S. Janardhanan,\n        Guruswamy Buildings,\n        6, Kachaleeswarar Street,\n        CHENNAI - 600 01.\n\n2.      Petroleum Workers Union,\n        rep. By its General Secretary,\n        G. Saravanan,\n        35, Vaidyanathan Street, Tondiarpet,\n        CHENNAI.\n\n3.      The Regional Labour Commissioner,\n        Mumbai.\n\n4.      Regional Labour Commissioner (Central),\n        Shahstri Bhavan, Haddows Road,\n        CHENNAI.                                ...     Respondents\n                                                        both in WA\n                                                        and WP\n\nPrayer in W.A.\n\n        Appeal against the order of the learned single Judge  dated  24.3.2003\npassed in W.P.  No.8972 of 2003.\n\nPrayer in W.P.\n\n        Petitioner  under  Article  226  of the Constitution of India to issue\nWrit of Mandamus for the reasons stated therein.\n\n!For Appellant\/Writ Petitioner  :       Mr.  A.L.  Somayaji,\n                                        Sr.  Counsel for\n                                        M\/s.T.S.  Gopalan\n\n^For Respondents 1 and 2                :       Ms.  R.  Vaigai\n\n:J U D G M E N T\n<\/pre>\n
THE HON’BLE THE CHIEF JUSTICE<\/p>\n
        This Writ Appeal is directed against the order of the  learned  single
\nJudge dated  24.3.2003  made  in  W.P.  No.8721 of 2003 ordering notice to the
\nrespondents.  The writ petition came to be filed as the respondents  1  and  2
\nresorted to  strike  pursuant  to  a strike notice issued thereto.  The relief
\nsought for is to issue a Writ of Mandamus or any  other  appropriate  writ  or
\ndirection  forbearing the respondents 1 and 2 from resorting to illegal strike
\npursuant to their notice dated 5.3 .2003 and pass such other  orders  as  this
\nCourt may  deem  fit.    The Writ Appeal was admitted on 25.3.2003 and interim
\norder, as sought for in W.A.M.P.  No.1801 of 2003, was granted.  A petition in
\nW.A.M.P.  No.1 835 of 2003 has been filed by the respondents 1 and 2 to vacate
\nthe said order.\n<\/p>\n
        2.      While the  appellant  is  the  Bharat  Petroleum  Corporation,
\nrespondents 1 and 2 are the employees’ unions.  The total number of employees,
\nwho are the members in the above unions are stated to be 1,200 in number, both
\nput together and their work relates to marketing.\n<\/p>\n
3.      Mr.  A.L.    Somayaji,  learned  senior counsel, appeared for the writ
\nappellant while Ms.  R.  Vaigai, learned counsel, appeared for the respondents
\n1 and 2.  The strike period, as notified by the respondents, is from 6.00 a.m.
\nof 25.3.2003 to 6.00 a.m.  of 28.3.2003.  It is stated  that  the  injunction,
\nwhich  has been granted by this Court on 25.3.20 03, was brought to the notice
\nof the respondents 1 and 2 and from the evening of 25.3.2003, the  strike,  in
\nso  far  as  the Southern Region is concerned, has been discontinued hoping to
\ncontinue the same in the event of the injunction order being vacated.\n<\/p>\n
        4.      We have heard both the learned counsel at length  and  we  are
\nnot  only  disposing  of  the  writ  appeal but also the writ petition for the
\nreason that after 06.00 a.m.  tomorrow i.e.  on 28.3.2003, no cause of  action
\nsurvives for adjudication.\n<\/p>\n
        5.      Ms.  R.    Vaigai,  learned counsel, fairly stated that she is
\nnot addressing the Court with regard to maintainability of the writ appeal  as
\nit is  filed  against  the  order  issuing  notice.  When we admitted the writ
\nappeal, we were alive to the situation that by the time the notice  is  served
\nand interlocutory application in the writ petition is heard, the writ petition
\nwould become infructuous.  As such, we have construed the order issuing notice
\nand  in  not  granting the ex parte order as amounting to the rejection of the
\norder by which irreparable injury ensues.  Anyhow, we need not elaborate  this
\nany  further  as  the  learned  counsel  for  the  respondents  1  and  2  has
\ncategorically stated before us that she is not raising that point and  seeking
\nadjudication on merits.\n<\/p>\n
        6.      At  the time of passing of the injunction orders on 25.3.2003,
\nsimilar orders passed by the High Court of Bombay was submitted before us  for
\nperusal  and  now  it  is not disputed that even the High Courts of Kerala and
\nDelhi had passed similar orders.\n<\/p>\n
        7.      Mr.  A.L.  Somayaji,  learned  senior  counsel,  had  strongly
\nrelied upon clause (d) of sub-Section (1) of Section 22 of Industrial Disputes
\nAct.   We  are  of  the  considered view that there was a prima facie case and
\nbalance of convenience  in  favour  of  the  appellant  for  issuance  of  the
\ninjunction  and  that injury which will be inflicted not only on the appellant
\nbut also the public in general, would irreparable.  Now that we are  disposing
\nof  the  writ  appeal  itself along with the writ petition, the considerations
\nwould be different as we have to dwell on the respective contentions of either
\ncounsel touching upon the merits of the case.\n<\/p>\n
        8.      Mr.  A.L.  Somayaji, learned senior counsel, appearing for the
\nappellant, raised the following contentions:\n<\/p>\n
(1)     As the conciliation is pending pursuant to the requisition sought  for
\nby  the  appellant,  pending the said conciliation proceedings, the members of
\nthe respondents 1 and 2 cannot resort to strike  as  the  same  is  prohibited
\nunder Section 22 (1) (d) of Industrial Disputes Act, 1947.\n<\/p>\n
(ii)    Six  weeks  notice, as mentioned in Section 22 (1) (a) of the Act, has
\nnot expired and as such, this strike is illegal.\n<\/p>\n
(iii)   In any event, as the self lease rental dispute is pending adjudication
\nin Industrial Dispute, the strike notice is illegal.\n<\/p>\n
        9.      Ms.  R.  Vaigai, learned counsel appearing for the respondents
\n1 and 2,  countered  the  said  arguments  submitting  that  as  there  is  no
\nIndustrial   Dispute,  even  according  to  the  appellant,  the  question  of
\nconciliation  does  not  arise  and  resort  to  Industrial  Disputes  Act  is
\nmisconceived.   She  also submits that each of the clauses of sub-Section (1 )
\nof Section 22 of Industrial Disputes Act has to be read separately and not  in
\nconjunction  and  as the strike notice satisfies clause (b) of sub-Section (1)
\nof Section 22, it is valid.  She further submitted that a  conciliation  or  a
\ndispute  is  restricted  to the issue involved and there cannot be any omnibus
\nembargo placed on the strike unrelated  to  the  conciliation  proceedings  or
\nindustrial  dispute and that pendency of an Industrial Dispute relating to the
\nself lease rental has got no relevance  to  place  restraint  on  the  instant
\nstrike.\n<\/p>\n
        10.     We  shall  now  deal  with  the  contentions 2 and 3 raised on
\nbehalf of the appellant.  We feel it apt to extract Sections 22, 23 and 24  of
\nIndustrial Disputes  Act,  1947,  as they are relevant for adjudication.  They
\nread thus,\n<\/p>\n
22.  Prohibition of strikes and lock-outs.  – (1)  No  person  employed  in  a
\npublic utility service shall go on strike in breach of contract –\n<\/p>\n
(a)     without  giving  to  the  employer  notice  of  strike, as hereinafter
\nprovided, within six weeks before striking; or<\/p>\n
(b)     within fourteen days of giving such notice; or<\/p>\n
(c)     before the expiry of the date of strike specified in any  such  notice
\nas aforesaid; or<\/p>\n
(d)     during   the   pendency  of  any  conciliation  proceedings  before  a
\nconciliation officer and seven days after the conclusion of such proceedings.\n<\/p>\n
(2)     No employer carrying on any public utility service shall  lockout  any
\nof his workmen-\n<\/p>\n
(a)     without giving them notice of lock-out as hereinafter provided, within
\nsix weeks before locking-out; or<\/p>\n
(b)     within fourteen days of giving such notice; or<\/p>\n
(c)     before the expiry of the date of lock-out specified in any such notice
\nas aforesaid; or<\/p>\n
(d)     during   the   pendency  of  any  conciliation  proceedings  before  a
\nconciliation officer and seven days after the conclusion of such proceedings.\n<\/p>\n
(3)     The notice of lock-out or strike  under  this  section  shall  not  be
\nnecessary  where  there  is already in existence a strike or, as the case may,
\nlock-out in the public utility service, but the employer shall send intimation
\nof such lock-out or strike on the  day  on  which  it  is  declared,  to  such
\nauthority  as  may be specified by the appropriate Government either generally
\nor for a particular area or for a particular class of public utility services.\n<\/p>\n
(4)     The notice of strike referred to in sub-Section (1) shall be given  by
\nsuch  number of persons to such person or persons and in such manner as may be
\nprescribed.\n<\/p>\n
(5)     The notice of lock-out referred to in sub-section (2) shall  be  given
\nin such manner as may be prescribed.\n<\/p>\n
(6)     If  on  any  day an employer receives from any persons employed by him
\nany such notices as are referred to in sub-section (1) or gives to any  person
\nemployed  by  him  any  such notices as are referred to in sub-Section (1), he
\nshall within five days thereof report to the appropriate Government or to such
\nauthority as that  Government  may  prescribe,  the  number  of  such  notices
\nreceived or given on that day.\n<\/p>\n
23.   General  prohibition  of  strikes  and  lock-outs.-  No  workman, who is
\nemployed in any industrial establishment shall  go  on  strike  in  breach  of
\ncontract and no employer of any such workman shall declare a lock-out-\n<\/p>\n
(a)     during  the  pendency  of  conciliation proceedings before a Board and
\nseven days after the conclusion of such proceedings;\n<\/p>\n
(b)     during the pendency of proceedings before a Labour Court, Tribunal  or
\nNational Tribunal and two months after the conclusion of such proceedings.\n<\/p>\n
(bb)    during  the  pendency  of arbitration proceedings before an arbitrator
\nand two months after the conclusion of such proceedings, where a  notification
\nhas been issued under sub-section (3-A) of Section 10-A; or<\/p>\n
(c)     during  any  period  in which a settlement or award is in operation in
\nrespect of any of the matters covered by the settlement or award.\n<\/p>\n
24.     Illegal strikes and lock-outs.- (1) A  strike  or  lock-out  shall  be
\nillegal if –\n<\/p>\n
(i)     it  is commenced or declared in contravention of Section 22 or Section
\n23; or<\/p>\n
(ii)    it is continued in contravention of an order made under subsection (3)
\nof section 10 or sub-section (4-A) of Section 10-A.\n<\/p>\n
(2)     Where a strike or lock-out in pursuance of an industrial  dispute  has
\nalready  commenced  and  is  in  existence at the time of the reference of the
\ndispute to a Board, an  arbitrator,  a  Labour  Court,  Tribunal  or  National
\nTribunal, the continuance of such strike or lock-out shall not be deemed to be
\nillegal,  provided that such strike or lock-out was not at its commencement in
\ncontravention of the provisions of this Act or the continuance thereof was not
\nprohibited under subsection (3) of Section 10 or sub-Section (4-A) of  Section
\n10-A.\n<\/p>\n
(3)     A  lock-out  declared  in consequence of an illegal strike or a strike
\ndeclared in consequence of an illegal lock-out  shall  not  be  deemed  to  be
\nillegal.\n<\/p>\n
        11.     Sub-Section  (1) of Section 22 of the Act prohibits the strike
\nenumerating the four conditions and, as rightly pointed out by  Ms.    Vaigai,
\nthe  prohibition  should  come in either of the said four clauses and not on a
\ncomposite reading of the clauses.  If the strike notice  satisfies  either  of
\nthe  conditions  stated  in  clauses  (a) to (d) of Section 22 (1), the strike
\ncannot be prohibited and consequently, cannot  be  termed  illegal.    As  the
\nstrike  notice has been given on 5.3.2003, the prohibition contained in clause\n<\/p>\n
(b) of Section 22 (1) is inapplicable.  It does not matter if six  weeks  does
\nnot expire,  which  is  the  condition  in  clause (a) thereof.  Clause (c) of
\nSection 22 (1) is also inapplicable.  We have to then consider only  regarding
\nthe applicability or otherwise of the prohibition contained in clause (d).  We
\nwill  deal  with the same as the contention No.1 Before that, dealing with the
\nsecond contention raised by Mr.  Somayaji, learned senior counsel,  we  accept
\nthe argument  of  Ms.    Vaigai  that any and every conciliation proceeding or
\nindustrial dispute cannot be a bar for going on strike.  Section 23 of the Act
\nhas got no such comprehensive  application.    The  prohibition  contained  in
\nSection  23 of the Act has to be confined only to that conciliation proceeding
\nor industrial dispute relating to a particular issue for adjudication and  the
\nissue  pending  adjudication in industrial dispute pursuant to the order dated
\n22.10.2002 passed in W.A.  No.3118 of 2002 is  only  relating  to  self  lease
\nrental  and  thus  cannot be read as a bar for going on strike on other issues
\nand the issue\/demand, which is presently raised by the  respondents  1  and  2
\nalong  with  other  workers’  union,  is  totally  unrelated  to  the  pending
\nIndustrial Dispute.  Hence, we are of the  considered  view  that  unless  the
\nstrike  is banned within the meaning of clause (d) of Section 22 (1), the same
\ncannot be termed illegal attracting Section 24 of the Act.\n<\/p>\n
        12.     To adjudicate this issue, a reading of the strike  notice  and
\nannexures thereto is necessary and they are as follows:<\/p>\n
\n\n\"PETROLEUM EMPLOYEES' UNION\n(Regd.  No.30\/MDS)\n\nPresident:                                              Communication Address:\nN.G.R.  Prasad                                  General Secretary, PEU.,\nAdvocate.                                               Bharat       Petroleum\nCorporation Ltd.\n                                                        1,         Ranganathan\nGardens,\nSecretary General:                                      Anna   Nagar   (West),\nChennai - 40.\nT.S.  Rengarajan                                        Phone :  621 6869\n                                                        Extn.:  2040 & 2110\nGeneral Secretary:\nP.S.  Janardhan\nREF:  PEU\/M\/11\/2003                                     Date:  05.03.2003\n\nThe Chairman & Managing Director,\nBharat Petroleum Corporation Limited,\nBharat Bhavan I,\nMumbai - 400 001.\nRespected Sir,\n\nSub:  Strike Notice\n\n<\/pre>\n
Gravely concerned by the Disinvestment Policy of the Government of India  with
\nregard  to  M\/s.BPCL  &  M\/s.HPCL  respectively,  the  Trade Unions in the Oil
\nIndustry (BPCL & HPCL in  particular)  created  a  National  United  Forum  to
\nexpress our strong and emphatic disapproval to the Government in the matter of
\nprivatisation of these two huge profit making Corporations.  It was decided in
\nthe  meeting  held on 27.2.2003 at New Delhi that all workmen both in Refining
\nand Marketing activities of M\/s.BPCL and M\/s.HPCL would go  on  strike  for  3
\ndays from 25.3.03  6 A.M.  to 28.3.03 6 A.M.  to press their demands mentioned
\nin the annexure.\n<\/p>\n
Please take note of this treating this  as  a  notice  of  strike.    In  this
\nconnection,  we  enclose  a copy of the Strike Notice addressed to the Hon’ble
\nMinister for Petroleum and Natural Gas duly signed  by  various  Trade  Unions
\nincluding our union P.E.U (BPC Unit) for your information and records.\n<\/p>\n
Thanking you,<\/p>\n
Yours faithfully,
\nFor Petroleum Employees’ Union (BPC Unit)<\/p>\n
Sd\/-\n<\/p>\n
P.S.  JANARDHANAN
\nGENERAL SECRETARY”\n<\/p>\n
\"The Hon'ble Minister                                   February 27, 2003.\nPetroleum and Natural Gas\nGovernment of India\n201-A, Shastri Bhavan\nNew Delhi - 1100 001\nFax:  011-2338 6118\n\nDear Sir,\n\nSub:    Notice of Strike\n\n<\/pre>\n
In  accordance  with the provisions contained in sub-section (1) of Section 22
\nof the  Industrial  Disputes  Act,  1947,  we  the  undersigned  trade  unions
\nfunctioning  in  Hindustan  Petroleum  Corporation  Limited ( HPCL) and Bharat
\nPetroleum Corporation Limited (BPCL), hereby give you notice that the  workmen
\nof  HPCL  and BPCL working in the Refineries, Marketing Establishments and all
\nother offices all over the country shall go on strike from 6.00 A.M.  of  25th
\nMarch 2003 to  6.   A.M.  of 28th March, 2003 for the reasons explained in the
\nannexure.<\/p>\n
\n\nThanking you,\n\nYours sincerely,\n\n                Sd\/-                                                    Sd\/-\n<\/pre>\n
Petroleum Workmens Union, BPCL Refinery Petroleum Workers Union, Chennai
\nMumbai.\n<\/p>\n
                Sd\/-                                                    Sd\/-\nBharat Petroleum Technical & Non Technical      Petroleum    Employes    Union\n(BPCL),\nEmployees Association, Refinery, Mumbai         Chennai.\n\n                Sd\/-                                                    Sd\/-\nBharat Petroleum Karmachari Union, Mumbai       Petroleum            Employees\nAssociation\n                                                        (BPCL), Cochin.\n\n                Sd\/-                                                    Sd\/-\nMaharashtra General Kamgar Union, Mumbai        All  India  Petroleum  Workers\nUnion\n                                                        (HPCL), Mumbai.\n\n                Sd\/-                                                    Sd\/-\nBPC Employees Union (CITU), Uran, Mumbai        Hindustan Petroleum Karmachari\n                                                        Union,          Mumbai\n(Refinery)\n\n                Sd\/-                                                    Sd\/-\nBharat Petroleum Corp.  (R) Employees Union,    Hindustan Petroleum Karmachari\nMumbai.                                         Union, Mumbai (Marketing)\n\n                Sd\/-                                                    Sd\/-\nBharat Petroluem Process Technician &           Petroleum Workers Union (HPCL)\nAnalyst Union, Refinery, Mumbai                 Kolkatta.\n\n\n                Sd\/-                                                    Sd\/-\nBharatiya Kamgar Karmachari Mahasangh,          Bengal Oil  &  Petrol  Workers\nUnion\nMumbai (BPCL & HPCL Refinery)                   (HPCL), Kolkata\n\n                Sd\/-                                                    Sd\/-\nPetroleum Workers Union (BPCL),                 Hindustan Petroleum Employees\nKolkatta.                                               Union, Delhi.\n\n                Sd\/-                                                    Sd\/-\nBengal Oil & Petrol Workers' Union,             Petroleum Workers Union, HPCL\nKolkatta, BPCL                                  Unit, Delhi.\n\n                Sd\/-                                                    Sd\/-\nBharat Petroleum Technician Union,                      Petroleum    Employees\nUnion (HPCL)\nDelhi                                                   Chennai.\n\n                Sd\/-                                                    Sd\/-\nPetroleum Workers Union, BPCL Unit              Petroleum Workers  Association\n( HPCL)\nDelhi                                                   Cochin.\n\n                Sd\/-                                                    Sd\/-\nHPCL Employees Union (CITU), Visakh             Petroleum    Workers'   Union,\nVisakh\nRefinery (Circular notice dt.  3\/2\/03)                  Refinery (Ref date  of\nearlier notice\n                                                        dt 3\/2\/03)\"\n\n\n\n\"ANNEXURE TO STRIKE NOTICE\"\n\n<\/pre>\n
The  strike  is in opposition to and demanding reversal of the decision of the
\nGovernment of India to privatise Hindustan Petroleum Corporation Ltd., through
\nstrategic sale and Bharat Petroleum Corporation Ltd.  Through  Initial  Public
\nOfferings including  in the international market.  The trade unions are of the
\nconsidered opinion that the privatisation of the  consistently  profit  making
\nnavaratna  oil  PSUs shall cause immense harm to the economy and the people of
\nthe country and of course, the employees of these two oil PSUs.\n<\/p>\n
HPCL and BPCL came into being under two different acts of Parliament.  The SSO
\n(acquisition of undertakings in India) Act of 1974 created HPCL and the  Burma
\nShell  (acquisition  of  undertakings  in India) Act of 1976 created the BPCL.
\nThe identical preamble  of  both  the  acts  clearly  reflects  the  strategic
\nnational  importance,  which  prompted  nationalisation  of  the  foreign  oil
\ncompanies and continues to be valid unquestionably.  The  preambles  mentions,
\n“it  is  expedient  in  the  public  interest  to  acquire  ownership of these
\ncompanies, in order to ensure that the  ownership  and  control  of  petroleum
\nproducts  distributed  and marketed in India by these companies are ves ted in
\nthe state and thereby so distributed as best to sub-serve the common good”\n<\/p>\n
13.     While the strike notice dated 5.3.2003 itself does not  refer  to  the
\nprovisions  of Section 22 of the Act, the basis of the strike notice stated is
\nthe notice previously issued to the Minister for Petroleum  and  Natural  Gas,
\nGovernment  of  India,  dated  27.2.2003  and it is crystal clear that all the
\nTrade Unions,  who  are  the  signatories,  have  given  a  strike  notice  in
\naccordance  with  the provisions contained in sub-Section (1) of Section 22 of
\nthe Act.  We need not take further strains to probe  into  the  matter  as  to
\nwhether it  relates to Section 22 of the Act or outside the same.  The dispute
\nis very much within the realm of Industrial Disputes Act, 1947 as  the  strike
\nnotice  has  been  given  as  contained  in Section 22 (1) of the Act and as a
\nnecessary  corollary,  the  conditions  enumerated  therein  have  got  to  be
\nfollowed.   The  appellant  Management has promptly referred the matter to the
\nConciliation Officer as is borne out by the following  communication  and  the
\nstrike  notice,  which  has been issued to the Union Ministry of Petroleum and
\nwhich was forwarded to the appellant Management,  was  also  enclosed  to  the
\nabove communication dated 10.3.2003.\n<\/p>\n
                                                BHARAT PETROLEUM CORPORATION
\nLIMITED
\n1, Ranganathan Gardens, Off 11th Main Road,
\nAnna Nagar,
\nPost Bag No.1212 & 1213,
\nChennai – 600 040.<\/p>\n
\nPhone 6216869\n\nHRS.S.STR.CON                                                   10.3.2003\n<\/pre>\n
The Regional Labour Commissioner (Central)
\nOffice of the Regional Labour Commissioner (C)
\nNo.26, Haddows Road, Shastri Bhavan,
\nCHENNAI – 600 006.\n<\/p>\n
Dear Sir,<\/p>\n
STRIKE NOTICE  ISSUED  BY  PETROLEUM  EMPLOYES UNION (PEU) CHENNAI :  PROPOSED
\nSTRIKE FROM 25.3.2003 TO 27.3.2003\n<\/p>\n
——–\n<\/p>\n
Petroleum Employees’ Union, Chennai, has vide their letter Ref.PEU\/M\/  11\/2003
\ndated  5.3.2003  issued  a  strike  notice  stating that PEU proposes to go on
\nstrike from 25.3.2003 to 27.3.2003 against Govt.   of  India’s  disinvestments
\npolicy with  regard  to  BPC and HPC.  Enclosed is a copy of the strike notice
\nfor your information and necessary action.\n<\/p>\n
Yours faithfully,
\nfor BHARAT PETROLEUM CORPN.  LTD.\n<\/p>\n
Sd\/-\n<\/p>\n
T.SOMANATH
\nDGM (HRS) SOUTH
\nencl:  as above”\n<\/p>\n
14.     Then the Regional Labour Commissioner concerned  has  acted  upon  the
\nsame  in  accordance  with  Section  12 of the Act and his communication is as
\nfollows:\n<\/p>\n
No.B.8 (45)\/2002.RI.C.PA
\nGovernment of India
\nMinistry of Labour<\/p>\n
Office of the
\nRegional Labour Commissioner,
\n(Central), Shramraksha Bhawan,
\nSion, Mumbai – 400 022.\n<\/p>\n
Dated:  March 11, 2003<\/p>\n
The Executive Director HR.\n<\/p>\n
Bharat Petroleum Corporation Limited,
\nBharat Bhawan, 4&6, Corimbhoy road,
\nMumbai-38.\n<\/p>\n
Petroleum Employees Association (BPCL),
\nCochin
\nC\/o BPCL
\nPetroleum Workers Union, Chennai
\nC\/o BPCL
\nBengal Oil & Petrol Workers’ Union,
\nKolkatta, BPCL
\nC\/o BPCL
\nPetroleum employees Union (BPCL), Chennai
\nC\/o BPCL<\/p>\n
Sub:  strike Notice served by the Unions Operating in BPCL over the government
\n        policy  on disinvestments of Hindustan petroleum  corporation  limited
\nand BPCL<\/p>\n
Dear Sir(s),<\/p>\n
        This is to inform you that I shall hold Conciliation Proceedings under
\nSection  12 of Industrial Dispute Act, 1947, in the above mentioned industrial
\ndispute in this office on 20.3.2003 at 11.00 hrs and 1100 hrs with a  view  to
\nbring about  an  amicable  settlement  on  this  dispute.  You are, therefore,
\nrequested to attend the Conciliation Proceedings\/Joint Discussions  either  in
\nperson  or  through a duly authorised representative with all-relevant records
\nand documents and evidence oral\/documentary.  Please note that if you fail  to
\nattend the conciliation\/discussions without reasonable cause in advance of the
\naforesaid date, the dispute shall be proceeded ‘ex parte’.\n<\/p>\n
        In  this  connection,  your  attention  is  invited to the obligations
\nimposed under Section 22 (1), 22 (2) and 33 of Industrial Disputes Act, 1947.\n<\/p>\n
        Your written comments on the issue raise by  the  Union\/Workman  (copy
\nenclosed), be furnished to this office with a copy to the Union\/ Workman.  The
\ncomments  (in  five  copies) and the following particulars may be sent to this
\noffice by 17.2.2003 as it would facilitate prompt disposal of the case.\n<\/p>\n
(a) No.  of workman in the concern\/establishment.\n<\/p>\n
(b) No.  & occupation of workmen affected by this dispute.\n<\/p>\n
(c) Whether any of the demands are covered by  the  provisions  of  any  other
\nlegislation or settlement or award.\n<\/p>\n
Yours faithfully,
\nSd\/-\n<\/p>\n
(M.P.M.  Sivakumar)
\nRegional Labour Commissioner
\n(Central), Mumbai.\n<\/p>\n
        15.     The said notice having been served on both the parties and the
\nappellant  and  respondents  1  and  2 having participated in the conciliation
\nproceedings, which was  firstly  set  on  20.3.2003,  then  adjourned  at  the
\ninstance  of  the  respondents  1  and  2 to 24.3.2003 and again adjourned, it
\ncannot lie in the mouth of the respondents 1 and 2 to plead  contra  that  the
\nmatter is not within the realm of the Industrial Disputes Act, 1947.  Even the
\npleading  to  that  effect by the appellant cannot have any legal basis as the
\nreference has been made by the appellant to the Conciliation Officer  and  the
\nstrike notice issued by the respondents 1 and 2 and both the parties are bound
\nby  the  conciliation proceedings and the effect thereof and they have to wait
\ntill the Conciliation Officer takes his decision one way or the other.\n<\/p>\n
        16.     In  view  of  the  above,  we  hold  that   the   conciliation
\nproceedings are pending relating to the issue for which strike notice has been
\ngiven  and  as  the  conciliation  proceedings  are  pending,  the prohibition
\ncontained in clause (d) of sub-Section (1) of Section  22  of  the  Industrial
\nDisputes  Act,  1947, came into operation right from the date of the notice of
\nConciliation Officer and as such, the strike by the respondents  1  and  2  is
\nillegal in view of Section 24 of the Act.\n<\/p>\n
        17.     Ms.  R.    Vaigai,  learned  counsel,  then raised yet another
\ncontention regarding the maintainability of  the  writ  petition  against  the
\nrespondents  1  and  2,  who  are  the employees union on the ground that they
\ncannot be termed as ‘other authorities’ within the meaning of  Article  12  of
\nIndian Constitution.    In  support  of  her  contention,  she  has  cited the
\njudgments of the Supreme Court in (i) SOM PRAKASH REKHI v.    UNION  OF  INDIA<\/a>
\n(1981) 1 S.C.C.   449),  (ii) BANK OF INDIA v.  T.S.  KELAWALA (1990) 4 S.C.C.\n<\/p>\n
744) and (iii) VST INDUSTRIES LTD v.  VST INDUSTRIES WORKERS’ UNION<\/a>  (2001)  1
\nS.C.C.   298) as also a decision of the Kerala High Court in (iv) CHEMOSYN (P)
\nLTD.  V.  KERALA MEDICAL AND  SALES  REPRESENTATIVES’  ASSOCIATION  (1988  (2)
\nL.L.J.  43).\n<\/p>\n
        18.     In  SOM  PRAKASH  REKHI’s  case  (cited (i) supra), a question
\narose as to whether Bharat Petroleum Corporation is a State within the meaning
\nof Article 12 of Constitution of India.  It was held that the said Corporation
\ncomes under the control of the Government of India and as  such,  is  a  State
\nwithin the  meaning  of Article 12.  In fact, the facts of the above case have
\ngot no bearing on this case as a claim was made against the  Burma  Shell  Oil
\nStorage  Limited,  which,  later  on,  became  Bharat  Petroleum  Corporation,
\nclaiming terminal benefits, which were withheld and which were  sought  to  be
\nreduced  and when the same were sought to be enforced, a contention was raised<\/p>\n
as to whether a writ is maintainable against the said employer.  It  was  held
\nthat the employer therein, in fact who is the appellant herein, is amenable to
\nwrit jurisdiction.\n<\/p>\n
        19.     In  the  case of BANK OF INDIA (cited (ii) supra), it was held
\nby the Supreme Court that the working class has indisputably earned the  right
\nto  strike  an  industrial  action  after  a long struggle so much so that the
\nrelevant industrial legislations recognise it as their implied right.  But the
\nSupreme Court also held that the legislation, i.e.  Industrial Disputes Act in
\nthe instant case and there  also,  circumscribes  the  said  right  by  fixing
\ncertain  conditions under which alone its exercise may become legal and that a
\nlegal strike may not invite disciplinary proceedings while an  illegal  strike
\nmay do so it being a misconduct.  The legal principles enunciated in the above
\nSupreme  Court  judgment fully support the limitations which are placed by the
\nIndustrial Disputes Act against  the  strike  so  far  as  the  employees  are
\nconcerned  and  against  the  lock outs so far as the employers are concerned.
\nThere are checks and balances under  Section  22  of  the  Act  and  also  the
\nconsequences  so  clearly stated in Section 24 of the Industrial Disputes Act.
\nA strike, which is violative of sub-Section (2) of Section 22 of the  Act,  is
\nillegal  under Section 24 of the Act and also the lock-out against sub-Section
\n(2) of Section 22 of the Act by the employer is equally illegal under  Section\n<\/p>\n
24.<\/p>\n
        20.     The  third  decision  in  VST  INDUSTRIES’s  case (cited (iii)
\nsupra) deals with  the  amenability  of  a  company,  incorporated  under  the
\nCompanies  Act,  to  writ  jurisdiction  under  Article 226 of Constitution of
\nIndia.  In the said case, the dispute was as to whether the employees  in  the
\ncanteen  of a company can be considered as employees of the company itself and
\nwhether a writ  can  be  maintained  directing  the  company  to  treat  those
\nemployees as its employees.  In fact, the facts are in a different context and
\nthe only issue was as to whether the company, incorporated under the Companies
\nAct  and  not  performing  any  public  duty,  can  be  made  amenable to writ
\njurisdiction.  Nevertheless, having regard to the repercussions involved,  the
\nSupreme  Court did not disturb the judgment of the High Court which had issued
\na writ as sought for.\n<\/p>\n
        21.     In so far  as  the  judgment  of  the  Kerala  High  Court  in
\nCHEMOSYN’  s  case  (cited  (iv) supra) is concerned, it was held that a Trade
\nUnion, registered under the Trade Unions Act, 1926, is not  amenable  to  writ
\njurisdiction  as  a  trade union does not come within the definition of ‘other
\nauthorities’ under Article 12 of Constitution.   But  the  facts  therein  are
\ntotally different  from the instant one.  There, the employer is a company and
\nthe respondent is the Association of Kerala Medical and Sales  Representatives
\nand as the members of the said Association, who had been deputed for training,
\nwent on leave defying the instructions and when the writ petition was filed to
\ndirect  the  Association  to  desist its members from indulging in any illegal
\nactivities, it was held that such a relief cannot be granted.  The same cannot
\nhave any bearing on this case.\n<\/p>\n
        22.     In ANDI MUKTA S.M.V.S.S.J.M.S.  TRUST v.  V.R.  RUDANI<\/a>  (1989)
\n2 S.   C.C.    691), an adjudication was made not in the context of Article 12
\nread with Article 32 of the Constitution but in the context of Article 12 read
\nwith Article 226 of the Constitution.  In paragraph 20 of the judgment, it  is
\nheld,<\/p>\n
“The  term  ‘authority’  used  in  Article 226, in the context, must receive a
\nliberal meaning unlike the term in Article 12.  Article 12  is  relevant  only
\nfor  the  purpose  of  enforcement  of  fundamental  rights  under Article 32.
\nArticle 226 confers power on the High Courts to issue writs for enforcement of
\nthe fundamental rights as well as  nonfundamental  rights.    The  words  ‘any
\nperson  or  authority’ used in Article 22 6 are, therefore, not to be confined
\nonly to statutory authorities and instrumentalities of the State.    They  may
\ncover any  other  person or body performing public duty.  The form of the body
\nconcerned is not very much relevant.  What is relevant is the  nature  of  the
\nduty imposed  on  the  body.  The duty must be judged in the light of positive
\nobligation owed by the person or authority to the affected party.   No  matter
\nby  what  means the duty is imposed, if a positive obligation exists, mandamus
\ncannot be denied.”\n<\/p>\n
        23.     This judgment was referred to by  the  Supreme  Court  in  VST
\nINDUSTRIES’ case  (cited (iii) supra) and has not been disapproved.  Here, the
\nrespondents 1 and 2, which are the registered bodies under Trade  Unions  Act,
\nare  legal  persons  and owe a duty under the statute, the provisions of which
\nhave been mentioned supra, not to  go  on  strike  unless  the  provisions  of
\nsub-Section (1)  of  Section  22 of the Act are complied with.  The Parliament
\nhas properly thought of imposing restrictions on the employees  from  striking
\nthe work  enumerating  the  conditional prohibitions.  That apart, Section 22,
\nincluding Section 24, of the Industrial Disputes Act is still on  the  statute
\nbook  and  has not been declared ultra vires the Constitution and as the right
\nto strike a work is regulated by the statute and as the statutory duty has not
\nbeen followed by the respondents 1 and 2 and as the respondents 1 and 2  would
\nhave  been  entitled to challenge if any illegal lock-out has been declared by
\nthe employer, equally the appellant  Corporation  also  is  entitled  to  seek
\nenforcement  of the statutory prohibition imposed upon the respondents 1 and 2
\nfrom striking the work as it is in utter disregard and violation of clause (d)
\nof sub-Section (1) of Section 22 of the Industrial Disputes Act.\n<\/p>\n
        24.     In the circumstances, the Writ Appeal and  Writ  Petition  are
\nallowed.  No costs.   Consequently,  connected  W.A.M.Ps.   and W.P.M.Ps.  are
\nclosed.<\/p>\n
\n\n(B.S.R., CJ) (D.M., J)\nbh\/\n\nInternet        :       Yes\nLR Entry        :       Yes\n\nTo\n\n1.      Petroleum Employees Union,\n        rep.  By its General Secretary,\n        P.S.  Janardhanan,\n        Guruswamy Buildings,\n        6, Kachaleeswarar Street,\n        CHENNAI - 600 01.\n\n2.      Petroleum Workers Union,\n        rep.  By its General Secretary,\n        G.  Saravanan,\n        35, Vaidyanathan Street, Tondiarpet,\n        CHENNAI.\n\n3.      The Regional Labour Commissioner,\n        Mumbai.\n\n<\/pre>\n
4.      Regional Labour Commissioner (Central),
\n        Shahstri Bhavan, Haddows Road,
\n        CHENNAI.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Bharat Petroleum Corpn. Ltd vs Petroleum Employees Union on 27 March, 2003 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-74838","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBharat Petroleum Corpn. 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