S P NANAVATY Vs. R K MLSHRA
LAWS(MPH)-1969-9-13
HIGH COURT OF MADHYA PRADESH
Decided on September 30,1969

S. P. NANAVATY Appellant
VERSUS
R. K. MLSHRA Respondents

JUDGEMENT

Bhave J. - (1.) THE petitioner is a Manager of Satna Cement Works, Satna. In the said Cement Works the employees resorted to strike on 20-12-1964 at 2 p. m. and the same lasted upto 10 a. m. the next day. On 15-2-1965 a complaint was presented before the Labour Court under section 89 of the Madhya Pradesh Industrial Relations Act, 1960, against respondents Nos. 1 to 4. A preliminary objection was raised before the Labour Court on 25-3-1965 to the effect that before a declaration was obtained that the strike was illegal, the complaint under section 89 of the Act against the respondents for their having instigated the strike could not be filed and, as such, the complaint was not tenable. THE Labour Court overruled the objection and held that no pre-declaration was necessary and the Labour Court could make an enquiry as to whether the strike was illegal or not in the present proceedings. On this reasoning, the objection was rejected on 14-10-1965. THE respondents Nos. 1 to 4 thereupon moved the Industrial Court. That Court by its order dated 28-7-1966, upheld the objection. THE present petition challenges the said order of the Industrial Court.
(2.) THE reasoning adopted by the Industrial Court, in brief, is that under section 82 of the Industrial Relations Act alone a strike can be declared illegal and unless the strike is declared illegal under that section, no penalty can be imposed either on the employee or the instigator. It was held that the language of sections 88 and 89 clearly indicated that the declaration of strike as illegal under section 82 was a condition precedent for filing a complaint under sections 88 and 89; and inasmuch as there was no such declaration, the complaint was not tenable. We must first point out that section 82 of the Act is not attracted in the case at all. Section 82 empowers the State Government to make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock-out, closure or stoppage will be illegal. This section thus deals with a situation where there is a possibility of a strike or a lock-out, and it does not deal with cases where the strike has already taken place. Reliance on section 82 and the conclusion on the basis of section 82 that that was the only method of securing a declaration is not, therefore, justified. Under section 61 of the Industrial Relations Act, the Labour Court, in addition to powers conferred under other provisions of the Act, has been conferred the power to decide whether a strike, lock-out, stoppage, closure or any change is illegal under the Act. This power clearly contemplates of declaring a strike illegal after it actually took place. Under section 62 of the Act, an application for getting a strike declared illegal can be filed within three months of the commencement of the strike. Section 63 then provides that no Labour Court shall take cognizance of any offence except on a complaint in writing made by the person affected thereby or the representative of employees or on a report in writing by the Labour Court. Section 63 thus clearly contemplates that the same Labour Court, which can entertain an application for declaring a strike as illegal, can also entertain a complaint under section 89 which provides for punishment of persons instigating illegal strike. This brings us to the interpretation of sections 88 and 89 of the Act. They read as follows: "88. Penalty for commencing illegal strike or illegal stoppage- Any employee who has gone on strike or stoppage or who joins a strike or a stoppage which a Labour Court or the Industrial Court has declared to be illegal shall, on conviction, be punishable with fine, which may extend to ten rupees and in the case of his continuing on strike or on stoppage, as the case may be, after the lapse of forty-eight hours after it is declared to be illegal, with an additional fine which may extend to one rupee per day for every day during which such strike or stoppage continues after such conviction subject to a maximum of fifty rupees. 89. Penalty for instigating etc., illegal strikes, lock-outs, closure or stoppage- (1) Any person who instigates or incites others to take part in or otherwise acts in furtherance of a lock-out or a closure for which an employer is punishable under section 87 or a strike or a stoppage for which any employee is punishable under section 88 shall, on conviction, be punishable with imprisonment of either description for a term which may extend to three months, or with fine or with both: Provided that no person shall be punished under this section, where the Court trying the offence is of opinion that in the circumstances of the case a reasonable doubt existed at the time of the commission of the offence about the illegality of the strike, lock-out, closure or stoppage, as the case may be. Explanation I. - For the purposes of this section, a person who contributes, collects, disburses or solicits funds for the purposes of any such strike, lock-out, closure or stoppage shall be deemed to act in furtherance thereof. Explanation II. - A person shall be deemed to have committed an offence under this section if, before an illegal strike, lock-out, closure or stoppage has commenced, has instigated or incited others to take part in or otherwise acted in furtherance of such strike, closure, lock-out or stoppage." The plain language of section 88 shows that an employee, who has gone on a strike or who joins a strike which a Labour Court or the Industrial Court has declared to be illegal (this has reference to the declaration given under section 82 of the Act), shall be punished with fine etc., and if during the pendency of the strike any declaration is given that the strike is illegal and if such person continues in the strike thereafter, an additional penalty is provided for. It does not indicate that before filing a complaint under section 88 there should have been a declaration that the strike was illegal. Similarly, by the use of the words "a strike or a stoppage for which any employee is punishable under section 88" in section 89, no such condition of pre-declaration of the strike being illegal is envisaged. These words merely indicate that if it is made out that the strike was illegal, in which case the employee could have been punished, in that case alone the instigator can also be held responsible. We have already noted that the same authority can declare a strike illegal and can also take cognizance of a complaint for imposing penalty. This being the position, we do not see any reason why the Labour Court should not be in a position to impose any penalty after first determining the fact as to whether the strike in question was illegal or not. We are fortified in this view for the additional reason, namely, that if an application is made for getting a declaration that the strike was illegal, the proper parties to the proceedings would be the employer and the employees and in that case the decision would be binding on the employer and his representatives as well as the employees, and no one else. It is, therefore, difficult to see how that declaration would be binding on the instigators (if they are not the employees) who are not parties to the proceedings. It would be still open to the instigators to urge before the Labour Court that the strike was in fact not illegal, though a declaration was given to that effect. If we are right in this conclusion, it follows that the pre-declaration of the strike being illegal would be an empty formality. It was urged that the proviso under section 89 gave ample protection to the third parties and that the insistence on the pre-declaration of the strike being illegal would not prejudice the third parties in any manner. The proviso is to the following effect: "Provided that no person shall be punished under this section, where the Court trying the offence is of opinion that in the circumstances of the case a reasonable doubt existed at the time of the commission of the offence about the legality of the strike, lock-out, closure or stoppage, as the case may be." The Proviso confers an additional protection. Even if it is found that the strike was, in fact, illegal, the instigator can take shelter behind the plea that a reasonable doubt existed at that time as to whether the strike would be rendered illegal or not. This Proviso does not include the right of challenging the finding or the declaration that the strike was illegal. That right is independent of the Proviso.
(3.) SHRI Gulab Gupta, who appeared for respondents Nos. 1 to 4, urged that under the scheme of the Act the declaration given by the Labour Court was binding on all the persons irrespective of the fact that they were parties to the proceedings or not. In other words, he urged that the said declaration operated as a decision in rem. We are not prepared to accept this contention. No decision can be made to operate in rem unless a specific provision to that effect is made by the statute. There is nothing in the Industrial Relations Act to say that this is the effect of any decision of the Labour Court. We find that in section 77 provision has been made making the order of the Labour Court, the Industrial Court or a Board binding on certain specified persons. The third parties to the disputes are not made bound by any decision of the said Courts under section 77 of the Act. For the aforesaid reasons, we find it difficult to uphold the order dated 28-7-1966 passed by the Industrial Court. The petition is, therefore, allowed. The said order is quashed and the case is remanded to the Labour Court for deciding the same on merits in the light of the interpretation put on the provisions of the Act by this Court. The petitioner shall get costs of these proceedings from respondents Nos. 1 to 4. Hearing fee is fixed at Rs. 150. The security amount shall be refunded to the petitioner. Petition allowed.;


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