Decided on December 06,1983



R.C.MANKAD - (1.) The only question which we ate called upon to answer in this petition filed by the petitioner-employer under Article 227 of the Constitution of India is whether the Industrial Tribunal (hereinafter referred to as the Tribunal) was justified in directing the petitioner to pay full back wages for the period from August 8/10/1977 to 16 complainants who had filed complaint under sec. 33-A of the industrial Disputes Act 1947 (hereinafter referred to as the Act).
(2.) Petitioner is an engineering establishment employing about 200 workmen. There were many industrial disputes between the petitioner and its workmen which were pending adjudication in the Tribunal. The workmen decided to go on strike and therefore their trade union gave a strike notice dated 5/07/1977 in which it was stated that the workmen should go on strike with effect from 26/07/1977 The workmen went on strike on 26/07/1977 The strike was peaceful and practically all the workmen joined it. It is the case of the petitioner that After the workmen proceeded on strike it placed a notice on the notice board calling upon the workmen to resume their duties. In the final notice the workmen were called upon to resume their duties on 6/08/1977 The workmen decided to call off the strike and their union gave a notice dated 6/08/1977 informing the petitioner that their strike would be called off with effect from 8/08/1977 The workmen reported for duty on 8/08/1977 No workman vas however allowed to resume duty by the petitioner unless he gave a writing to the following effect: I the undersigned do hereby state that at the instigation of some workmen I had joined the illegal strike of the workmen of the factory from 26-7-77. 1 am sorry for the sate. I hereby give an undertaking that henceforth I will act peacefully and tn disciplined manner and I shall not commit similar or any other misconduct. I request the Company that taking this into consideration may be pardoned for my aforesaid misconduct. And the Company may impose any punishment on me and I shall not raise any objection in that regard. All the workmen except 16 respondents who were complainants gave statements in the aforesaid form on 8/08/1977 or subsequent thereto before they were permitted to resume their duties The respondents however refused to give such statements and therefore the petitioner did not permit them to resume their duties. After the conciliation proceedings failed the respondent approached the Tribunal by filing complaint under sec 34A of the Act. It was alleged in the complaint that the action of the petitioner in refusing to permit the respondents to resume duty when they reported for duty on 8/08/1977 was illegal and that the petitioner be directed to reinstate them in service with full back wages.
(3.) In its written statement the stand which was taken up by the petitioner was that services of the respondents were not terminated and therefore relationship of master and servant continued Between the parties. Consequently it was submitted that there was no contravention of sec. 33 which would justify filing of the complaint under sec. 33A. It was contended that there was no contravention of sec. 33 and therefore complaint under sec. 33A was not maintainable. Petitioner admitted that industrial disputes between it and its workmen were pending for adjudication before the Tribunal. It was however contended that the workmen had gone on illegal strike from 26/07/1977 with a view to pressurising the petitioner in aceeding to their unreasonable demands. The petitioner therefore called upon its workmen to resume their duties as already stated above. According to the petitioner the workmen W executed writing as stated above were permitted to resume their duties. This writing according to the petitioner was in the nature of an apology for going on an illegal strike. Since the respondents were not ready to tender such apology they were not allowed to resume their duties. Petitioner thus in terms conceded that it was on account of the refusal on the part of the respondents to execute the writing of the nature referred to above that they were not allowed to resume their duties It is further submitted that while the dispute was pending before the conciliation officer that is Assistant Commissioner of Labour Ahmedabad the petitioner had agreed not to insist upon the above writing being executed by the respondents and to take the respondents back on work subject to the petitioners right to take disciplinary action against them for having resorted to illegal strike. This stand taken up by the petitioner clarifies the position that no action was taken against the respondents for their having resorted to illegal strike upto the date of filing of the written statement. Petitioner contends that the respondents were not only not willing to accept the condition about reserving its right to take disciplinary action if any against them but insisted upon assurance that no disciplinary action would be taken against them for going on such strike. Is was finally stated in the written statement that the petitioner has not terminated the services of the respondents that they were on the muster roll of the petitioner and that they were free to report for duty whenever they chose to do so. It was submitted that if the respondents apologised for going on strike the petitioner would not take any disciplinary action against them but if they did not apologise the petitioner reserved its right to take disciplinary action against them.;

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