JUDGMENT
1. This is a petition praying for an appropriate writ, order of direction under Art. 226 of the Constitution. The petitioners are a limited liability company carrying on business as manufacturers of medicines and drugs. The petitioners own a factory which is situated at Gokhale Road, Dadar, Bombay. For the purposes of that factory the petitioners employed a large number of workmen.
2. Certain workmen employed by the petitioners were members of the Chemical Employees’ Union. They went on an illegal strike on 20 September, 1962. Several other workmen of the petitioners, however, did not go on strike, but continued to attend to their duties. According to the petitioners, between 20 and 29 September, 1962 the striking workmen created such a situation that the petitioners, with a view to protect the non-striking workmen and their own property, decided to lay off the non-striking workmen. The petitioners laid off such non-striking workmen by a notice dated 29 September, 1962.
3. Most of the non-striking workmen, numbering about 229, filed individual applications against the petitioners for recovery of lay-off compensation under the provisions of S. 33(1) of the Industrial Disputes Act, 1947. Each of the respondents 3 to 57 were among those non-striking workmen who had filed such applications for payment of lay-off compensation. The said applications were heard before the first labour court, Bombay, of which respondent 1 was the presiding officer. All those applications were resisted by the petitioners on diverse grounds, Respondent 1, however, negatived all those contentions of the petitioners and by his order dated 28 August, 1964 held that the petitioners were liable to pay the said lay-off compensation to the applicants. By that order respondent 1 directed the petitioners to pay to each of the applicants the amount of lay-off compensation payable to each of them as determined by the said order, as also the costs of the said proceedings. Respondent 1 then issued the necessary certificate on the same date, viz., 28 August, 1964, directing that the Collector of Bombay should proceed to recover the amounts of compensation and costs ordered to be paid by the petitioners by the said order. On the basis of that certificate the Collector of Bombay, who is respondent 2 to this petition, issued and served upon the petitioners a notice of demand dated 4 September, 1964 calling upon the petitioners to pay the amounts mentioned in the said order and the said certificate. The petitioners thereupon filed this petition against the respondents praying for a writ of certiorari for quashing the said order and the said certificate and for a writ of mandamus against respondent 2 ordering him to forbear from enforcing the said notice of demand.
4. At the hearing of this petition before me respondents 1 and 2 have not appeared. Sri Chitale has appeared on behalf of many but not all of the respondents 3 to 57.
5. At the very outset, Sri Phadke, the learned counsel for the petitioners, stated that he would urge only three contentions on this petition. The said three contentions were the following :
(1) That under S. 33C(2) of the Industrial Disputes Act the labour court has no jurisdiction to entertain a claim for a specified sum of money which cannot be said to be benefit within the meaning of the terms as used in that section;
(2) That, in any event, workmen admittedly on strike cannot be said to be “laid off” in any sense of the phrase. He stated that in other words the concepts of “lay-off” and of “strike” are mutually exclusive.
(3) And that in any event since the lay-off in the present case was due to “a strike,” no compensation is payable to any of the workmen laid off.
6. Now, turning to the said third contention of Sri Phadke first, it is based on the provisions of S. 25E of the Industrial Disputes Act, 1947. That section reads as under :
“25E. No compensation shall be paid to a workman who has been laid off –
(i) if he refuses to accept any alternative employment from which he has been laid off, or in any other establishment belonging to the same employer situate in the same town or village or situate within a radius of five miles from the establishment to which he belongs, if, in the opinion of the employer, such alternative employment does not call for any special skill or previous experience and can be done by the workman, provided that the wages which would normally have been paid to the workman are offered for the alternative employment also;
(ii) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;
(iii) if such laying off is due to a strike or slowing down of production on the part of workmen in another part of the establishment.”
7. The arguments on either side turned on the interpretation of the provisions of Clause (iii) of the said S. 25E. The arguments are on two points of construction. The first question raised is as to what is the meaning to be attached to the work “part” occurring in the phrase “in another part of the establishment.” The second question raised is whether the words “on the part of workmen in another part of the establishment” quality only the words “slowing down of production” or the words “a strike also.”
8. Turning to the said first question, Sri Chitale, the learned counsel for some of the non-striking workmen-respondents, contended that Clause (iii) can apply only when in establishment is divided into different parts, but now when there are no different parts in an establishment. Sri Chitale contended that there must be some division into different parts, although the basis for such division may vary considerably, as for example, it may vary by reason of the nature of the work which the workmen were doing e.g., some doing the work of spinning and the other doing the work of weaving, or it may vary by reason of the location of the places where they work as when although the workmen are doing the same kind of work they may be located in different parts of the factory premises. Sri Chitale contended that unless the said Clause (iii) is construed as applicable only when there are different parts of the establishment, no force would be given to the words “another part” occurring in that clause.
9. The main provision for payment of lay-off compensation is contained in S. 25C. The provision of S. 25E carve out an exception to that general provision for payment of lay-off compensation. In the cases failing under any of the three clauses of S. 25E, no compensation is payable to a workmen although he may have been laid off. Laying off a workman is an action of the employer. It results in depriving the workman who had been laid off of the opportunity to work and earn wages. The employer is therefore required to pay compensation to the workman who is laid off if the workman’s case falls within the the provisions of S. 25C. Even though it is the action of the employer which results in the lay-off, the employer is absolved from the obligation to pay lay-off compensation if the provisions of any of the three clauses of S. 25E apply. Clauses (i) and (ii) provide that no compensation for lay-off need be paid if the laid-off workman refuses to accept any alternative employment as mentioned in Clause (i) or if he does not present himself for work as mentioned in Clause (ii). The first two clauses show that the employer is absolved from payment of lay-off compensation, if the laid-off workmen themselves commit defaults as mentioned in those two clauses. Turning to Clause (iii), generally speaking, on the language used in that clause, the intention of the legislature appears to be to absolve the employer from an obligation to pay lay-off compensation to some of the workmen in the establishment if the employer has to lay them off due to a strike or slowing down of production by some other workmen in that establishment. It is clear that the general intention is that if some of the workmen in an establishment resort to a strike or slowing down of production, it may bring about such conditions, that the employer may be compelled to lay off some other workmen. Normally speaking, an employer who works an establishment works it for profit. His normal inclination would, therefore, be to see that the establishment continues to work and does not stop work wholly or even partially. Stopping of work would prevent him from earning profits and subject him to the continuing overhead liabilities. There is, therefore, a reason inherent in the situation which would prevent an employer from laying off workmen. But if some of the workmen in his establishment go on a strike or resort to slowing down of production, it may be that the employer may be compelled, for the protection of his own establishment and for the protection even of those workmen who do not go on a strike or resort to slowing down of production, to lay off workmen other than those who resort to strike or slowing down of production. In such cases the legislature intended to absolve the employer from the requirement of paying lay-off compensation. Such being the general intention of the legislature, there is no reason to interpret the words “part of the establishment” as canvassed for by Sri Chitale. The word “part” as used in Clause (iii) must be interpreted as meaning workmen other than those who were on strike or have slowed down production, even if both the categories of workmen be doing the same kind of work or even in the same part of the factory premises. In my opinion, the interpretation canvassed for by Sri Chitale, in this respect is not sound.
10. The second question is whether the phrase “on the part of workmen in another part of the establishment” qualifies merely the words “slowing down of production” or it also qualifies the words “a strike.” There are reasons which indicate that the said words qualify both. On a pure grammatical construction there is no reason to interpret the said words as qualifying only one but not both. If that phrase is read as qualifying the words “slowing down of production,” the rest of the clause which relates to a strike would read “If such laying off is due to a strike.” Now the strike can be of all workmen of an establishment, or of only some. There is no provision in the Act for laying off workmen who are themselves on strike or for payment of lay-off compensation to such striking workmen. In the absence of such latter provision there is no occasion for making an exception in the said Clause (iii) absolving the employer from the obligation to pay lay-off compensation to workmen who themselves are on strike. If all workmen are on strike, there would be no question of laying off any workman or praying any lay-off compensation. This part of the said Clause (iii) must, therefore, apply, not when all workmen are on strike, but only when some workmen are on strike. Now the said Clause (iii) provides that no lay-off compensation need be paid when some workmen are laid off due to a strike, which must mean strike of workmen other than those who are laid off. There is therefore naturally inherent in this provision that there must be a strike in one part of the establishment, i.e., of one section of the workmen, and due to that reason, there is a lay-off of workmen in another part of the establishment, i.e. of workmen other than those on strike. And it is this very provision, which is inherent in the situation, which is contained in the said qualifying words, and there is therefore no reason to construe the said qualifying words as not being applicable even to the words “a strike.”
11. In this particular case respondents 3 to 57 had not gone on a strike. It was the other workmen who were members of the union referred to above who had gone on a strike. It was by reason of the action of that latter group of workmen that the employer had to lay off workmen, including respondents 3 to 57. Under the interpretation which I have placed on S. 25E, respondents 3 to 57 were laid off due to strike on the part of workmen in another part of the establishment. The case is, therefore, covered by the third clause of S. 25E.
12. The result, therefore, is that not compensation was payable to any of the respondents 3 to 57. The said order and the said certificate must, therefore, be quashed and respondent 2 must be directed to forbear from enforcing the said notice of demand. I, therefore, make an order in terms of prayers (a) and (b) of the petition. There will be no order as to costs.