Decided on July 05,1963



Sinha, J. - (1.)The facts in this case are shortly as follows: The petitioner before us is Messrs. P. C. Roy and Company (India) Private Limited. It is a company which has extensive business in the Andaman and Nicobar Islands. One of the places it carries on business is at Mayabunder. There, it employs about five hundred work-men and there is a labour union called the "Raycom Forest Labour Union". It seems that this company was in embarrassed financial circumstances ever since 1957. In 1957, four months' wages of the workers were in arrears. During the year 1957-58 this sort of thing continued and the Collector had to issue orders under Section 33-C of the Industrial Disputes Act for recovering all the arrears of wages as a public demand. in or about December, 1959 about six months' wages fell in arrears. On 20th December, 1959, the workmen, through the said Union, served a notice on the Company to the effect that the workmen will go on stride from 11th January, 1960 until the wages were paid off. The workmen commenced strike on 11th January, 1960. On or about 30th January, 1950 the arrears were all paid off and on 4th January, 1960 the workmen resumed work. Again the wages or April and May 1960 fell in arrear. Thereupon, the workmen approached the Labour Commissioner and conciliation proceedings commenced on 14th June, 1960. The workmen served a notice of strike from 28th Juris, 1960 until their arrears of wages were paid. On 29th June, 1960 another strike commenced. It appears that on or about 11th August, 1960 the Company offered to pay up all the arrears. In We meantime, the Conciliation proceeding was going on and some sort of agreement was readied between the Company and the workmen but the strike was not called off because the workmen insisted upon some other payments, apart from the wages. Actually it was on 3rd September, 1960 that the workmen resumed work. Thereafter, an industrial dispute arose between the parties which was ultimately referred to arbitration under the provision of Section 10A of the said Act. Section 10A of the said Act provides that if the parties to an industrial dispute, which exists or is apprehended agree to refer the dispute to arbitration, they may before reference has been made under Section 10, enter into a written agreement and refer the dispute to arbitration. Thereafter, the Government has to be informed about the agreement which is published in the official gazette. Thereupon, the Arbitrator appointed has jurisdiction to adjudicate upon the dispute so referred. In this particular case, the parties entered into a writ-ten agreement for arbitration under section 10A of we said Act and the Government being informed of the fact, a notification was issued in the Andaman and Nicobar Gazette, dated 2nd September, 1960 referring the dispute to the arbitration of Sri. M. B. Malhotra. The subject matter of arbitration was the payment of the strike period wages from 11th January, 1960 to 4th February, 1960 and from 29th September, 1950 to the date of settlement -- 3rd September, 1960. Notice of the arbitration proceeding was served upon the parties, caning upon them to file their respective objections and then matter was hoard and decided by the Arbitrator, who made his award on 30th June, 1961. It is against this award that this application has been made. Shortly put, the Arbitrator has found that the employer was in default in paying wages of the workmen upto 11th August, 1960 when it offered to pay the entire arrears. Before this date they were in arrears from time to time and the workmen went on strike alter serving notice upon the Company, in order to compel the Company to make payment. The Arbitrator has held that an employer should always b& ready to pay workmen their wages, after the same had become due, and it is no answer to say that the employer is in financial embarrassment therefore, upto the date when it was in a position to make the payment of all arrears, the strike was justified, but the strike was not justified after that date. He has, accordingly, directed payment of wages for the period upto 11th August, 1960, that is to say, from 11th January, 1960 to 3rd February, 1960 and from 29th June, 1960 to 11th August, 1960.
(2.)Mr. Sinha, learned Advocate appearing on behalf of the petitioner, says that the strike was unjustified. He refers to allegations made on behalf of the Company that the workers were guilty of violence, inasmuch as they not only refused to load the ship, but also set free the elephants and did other acts which cannot foe said to be peaceful. Upon this point, however, there is a distinct finding of the Arbitrator that on both the occasions the strike was peaceful. In this jurisdiction, such a finding cannot be lightly set aside. Mr. Sinha has confessed that he cannot point to us any particular evidence which has established the fact that the strike was violent and not peaceful, except that the company has stated that it was so. Apart from this, he has argued that in an adjudication like this, the Arbitrator should take into account the fact that the employer was financially embarrassed and therefore, there was no lack of bona fides on its behalf. I may state here that the argument is not that the strike was unlawful. The question of strikes on behalf of the workmen has been considered in the Industrial Disputes Act and is covered by sections 22 to 24. In section 22 there is a prohibition of strikes in the case of public utility concerns. In such a case, no person is permitted to go on strike if breach of contract without giving specific notice mentioned therein in section 23 again, the workmen in an industrial establishment are prohibited from going on strike in breach of contract, during the pendency of Conciliation, proceeding before a Conciliation Board. Mr. Sinha has confessed that in this case his client has not made out the case that the strike was in breach of any contract, and therefore, he cannot say that the strike was illegal under the provisions of those sections in the Industrial Disputes Act. He, however, argued that quite apart from this the Arbitrator should have taken into consideration the circumstances prevailing, so far as the employer was concerned, in Order to come to a conclusion, as to whether the strikes were justified or not. In my opinion, the ARBItrator has taken the correct approach to the question. Where a strike is indulged in contravention of the law, that is one thing. In such a case, the law provides the remedy. But apart from it, the principle has been correctly stated namely that an employer must at all material time be ready to pay his workmen., their earned wages. In other words, workmen who have done their work cannot under any circumstances be deprived of the immediate payment of their wages, and the fact that the employer is in a state of economic embarrassment cannot justify the non-payment of such wages that being so, no exception should be grafted on that salutary principle and I am unable to hold that an employer is justified in withholding the wages of his workmen for work already done, on the ground that he had not the money to pay them. That being the ground on which the Arbitrator arrived at his conclusion to the effect that we strike was justified, there is very little further to be said.
(3.)Mr. Sinha has drawn our attention to a decision of the Supreme court in the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation. That case deals with sections 33 and 33A of the Industrial Disputes Act, and I do not see how it throws any light upon the problem which we are facing in this case. It has been laid down in that case that, in industrial adjudications, a tribunal should be slow to adopt any doctrinaire or legalistic approach and should avoid the temptation or formulating general principles and laying down general rules which purported in cover all cases. I do not think that the Arbitrator in the instant case has attempted to do so. He has only dealt with the case before him and has introduced a principle which seems to be well established. That principle is so firmly established that it can scarcely be characterised as doctrine. Mr. Sinha has not been able to find one single decision which has held to the contrary, that is to say, which has held that the nonpayment of wages by an employer can be excused on the ground that he had not the means to pay it for the time being. The principle of mala fides or bona fides certainly enter into industrial adjudications, but applied to the facts and circumstances of the present case it falls to support the case of the petitioner. In other words, the non-payment of wages because of embarrassing financial circumstances even if bona fide cannot be held to be justified. I do not say that the non-payment necessarily introduces any element of dishonesty en the part or the employer. But if the absolute liability of the employer is at all times to be ready and willing to pay the wages of workmen, it cannot be said that he has a good excuse for non-payment because he has been visited with cad luck or evil circumstances by which he is not able to discharge his liability in proper time. In such a case, the question of bona fides is not a relevant consideration. The workmen should not be dependent for the payment of their wages for work already done upon the exigencies of the situation and the state of the employers purse. It is an absolute liability that must be discharged at once. That being so, I do not find any defect in the decision ot the Arbitrator I might mention here that Mr. Sinha has attempted to argue a point which in reality was never placed before the Arbitrator. He attempted to argue that there was an agreement between the employer and the employees whereby it was agreed that if the employees did not rejoin work upon a particular date, the liability of the employer to make payment for the strike period would vanish. That was nut the case made out before the Arbitrator. What was argued before the Arbitrator was that inasmuch as the workman did not resume work on a particular date, in spite of an "undertsanding" that they would do so, the Arbitrator had no jurisdiction to enter into the reference. This point was rejected by the Arbitrator, and in fact Mr. Sinha has not really pressed it before us. The jurisdiction of the Arbitrator depends on the agreement and the publication in the gazette. Nothing has been shown to us to justify the contention that because the workmen had not resumed work on a particular date, the Arbitrator had lost his jurisdiction. No terms of any agreement which would justify such a conclusion has been placed before us or before the Arbitrator. So tar as the ether contention, is concerned, namely, that because of non-fulfillment of such a condition in an agreement, the workmen had lost their right to payment of wages during the strike period, that point was not at all raised before the Arbitrator and was not dealt with by him in his award and no materials have been placed before us to justify such a contention. Even if we were able to go into that point we are not satisfied that there was any such condition in any agreement whereby the workmen lost their rights to payment of the wages during the strike period which has been found to be a period during which the workmen were justified in going on strike.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.