- (1.) This is an appeal preferred by Life Insurance Corporation of India and Ors. from the judgment of PC. Borooah, J. delivered on August 25th, 1982, pursuant to the application made by Amalendu Gupta and others. The said Amalendu Gupta and Ors. made an application under Article 226 of Constitution of India inter alia praying that a writ in the nature of Mandamus be issued, directing Life Insurance Corporation of India (hereinafter also referred to for the sake of brevity as 'LIC') to cancel the circulars and/or orders dated 16th April 1981 and 23rd April 1981 issued by the Senior Divisional Manager, LIC Calcutta Divisional Office. The said Amalendu Gupta and Ors. (hereinafter also referred to as 'employees') also prayed that the LIC be directed to refund and/or restore 14 days' wages and allowances deducted by the LIC from the April, 1981 salaries of the Class III and Class IV employees of the LIC. A rule was issued pursuant to the said application and affidavits were also filed on behalf of the parties.
(2.) The learned Judge after hearing the said application of the employees, made the Rule absolute and quashed the said circulars dated 16th April, 1981 and 23rd April, 1981. The Learned Judge also directed LIC to pay the concerned employees, the salaries for the strike period together with the interest at 12% per annum. The LIC of India and Ors. have appealed from the said Judgment and Order of the Learned Judge, inter alia on the ground that the employees were not entitled to demand wages for the period when they refused to work. It has also been contended that the strike was illegal and unjustified and that even if the strike was legal or justifiable, then also wages for the strike period are not permitted since the employees refused to work. It has further been urged on behalf of the LIC. that the employees in any event cannot invoke Article 226 of the Constitution of India, for realising the wages for the period of strike and they should have raised a dispute under Section 10 of the Industrial Disputes Act if they desired to claim the same and there being an alternative and effective remedy they could not come to this Court in its Constitutional Writ Jurisdiction. It has also been urged that whether the strike was justifiable or not is a question of fact which could not conveniently be decided under the writ jurisdiction of this Court. The contention on behalf of the employees has been that this was a justified and legal strike and that in a case like this the Learned Judge was perfectly justified in making an order for payment of the wages for the strike period.
(3.) The facts of the case are as hereunder: The Respondents No. 1 and 2 are the permanent class III employees and the respondent No. 3 is a permanent class IV employee of the Life Insurance Corporation of India. The respondent No. 4 is the Federation and registered Union of the said employees. There was a bipartite settlement dated 24th January 1974 under Section 18(1) of the Industrial Disputes Act 1947 (hereinafter referred as 'the said Act'), between the LIC. and the All India Insurance Employees Association representing Class III and Class IV employees of the LIC. Under the said settlement LIC was to pay annual cash bonus to their Class III and Class IV employees, at 15% of their annual wages inclusive of all allowances. This settlement was to continue for a period of 4 years, i.e. from April 1973 to 31st March 1977. On 25th September 1975 an ordinance was promulgated, called Payment of Bonus (Amendment) Ordinance 1975. On 26th September 1975 LIC issued a circular to the effect that payment of bonus was under review in view of the Ordinance. As the LIC failed to pay bonus in terms of the settlement, the employees made an application to this Court under its Constitutional Writ Jurisdiction. By and under the judgment delivered on 21st May, 1976 in the said matter being Matter No. 371 of 1976 (since reported in 1977 I LLJ. 415, the appellant was directed to pay the bonus which had till then become due and payable to the said employees in terms of the settlement. On 27th May, 1976 the appellant issued a purported notice of termination of the settlement dated 24th January, 1974 under the provisions of Section 19(2) of the said Act and also purported to amend the staff regulations relating to bonus. On 29th May 1976, the LIC (Modification of Settlement) Act 1976 (Act 72 of 1976) came into force with retrospective effect from 25th September 1975. The said Act was challenged before the Hon'ble Supreme Court by the employees of LIC. Hon'ble Supreme Court declared the said Act to be void as offending Article 31(2) and directed payment of annual cash bonus for the years 1975-76 and 1976-77, according to settlement of 1974. This judgment has been reported in 1978 I LLJ. 406 Madan Mohan Pathak v. Union of India. In March 1978 LIC issued notice under Section 9A of the Industrial Disputes Act, to change the conditions of service relating to annual cash bonus. In May 1978, LIC amended LIC (Start) Regulation No. 58 under Section 49 of LIC Act in the matter of annual cash bonus. On 26th May 1978 Govt. of India issued a notice under Section 11(2) of the LIC Act, amending the provision of annual cash bonus. The actions of the LIC, and the Govt. of India were challenged by the employees and the matter ultimately went up to the Supreme Court. The Supreme Court by a judgment delivered on 10th November 1980 directed the LIC to pay annual cash bonus to their Class III and Class IV employees in terms of the 1974 settlement relating to annual cash bonus. This judgment has been reported in 198 I LLJ 1. When in spite of the directions or orders of the Supreme Court the LIC failed to pay the bonus, a contempt application was filed and the Supreme Court on 18th January 1981 passed the following order: Learned Attorney General who appears on behalf of the Life Insurance Corporation of India has made a statement before us that the order passed by this Court in its Judgment dated November 10, 1980 shall be complied with before April 15, 1981. We may add that this Order will naturally be subject to the result of the Review Petition, Stay petition filed along with the Review Petition is rejected. Review petition be circulated to Court. It may be added here that in the meantime the Appellant had also filed a review petition. On 31st January 1981 the Life Insurance Corporation Amendment Ordinance (No. 3 of 1981) was promulgated amending Sections 48 and 49 of the Life Insurance Corporation Act, 1956. Acting under the said Ordinance the Central Government framed Life Insurance Corporation of India Class III and Class IV Employees' (Bonus & D.A.) Rules, 1981 taking away their right to receive annual cash bonus from 1st July 1979 and imposing a ceiling on D.A. from 2nd February 1981. The contempt Matter again came up before the Supreme Court on 26th February 1981 when the Supreme Court was pleased to pass the order which has been set out in paragraph 16 of the writ petition. When in spite of the repeated orders of the Supreme Court the respondent No. 1 failed and neglected to pay the bonus in accordance with the 1974 agreement, the respondent No. 4 issued a notice to the Appellant for going on strike on and from 2nd April 1981. The strike notice has been set out in paragraph 23 of the writ petition. On 17th March 1981 the Supreme Court rejected the appellant's petition for review of the Supreme Court's earlier order and on the next date, the Senior Divisional Manager of the respondent No. 1 issued instructions to all Heads of Departments, Senior Branch Managers and Branch Managers not to grant any leave other than casual leave and maternity leave in view of the proposed strike of the employees. A copy of these instructions is included in Annexure 'F' to the petition. The Ordinance promulgated on 31st January 1981 as well as the purported Notification issued on 2nd February 1981 were both challenged on behalf of the Class III and Class IV employees of the appellant in the Supreme Court and both the LIC as well as the Central Government were restrained by an order dated 30th March 1981 from giving effect to the said Notification issued on 2nd February 1981 in so far as the same relates to the payment of annual cash bonus to Class III & Class IV employees. On 2nd April 1981 the Supreme Court passed the following order: M/s. M.K. Ramamurthi, R.K. Garg, Vimal Deve and A.K. Goel on behalf of the petitioners give an undertaking to this Court that in the event of the writ petitioners failing the Corporation would be entitled to make adjustments from the future emoluments payable to the petitioners in case any over payment is made to them in terms of the agreement dated 24th January 1974 and 6th February 1974, The interim order made on 30th March, 1981 will continue until further order. When in spite of the various orders of the Supreme Court referred to above the LIC still did not pay the bonus which became due and payable to the Class 111 and Class IV employees, the said employees went on strike as per their notice already given on and from 2nd April 1981. The strike was recalled and the concerned employees went back to work, when the Supreme Court passed the order on the aforesaid writ petition, filed on behalf of the employees, on 15th April 1981, directing the respondent No. I to make the payments within one week from the date. Thereafter on 16th April 1981 the respondent No. 1 issued a Circular to the Divisional Manager (Accounts) of the Calcutta Divisional Office and all Senior Branch Managers and Branch Managers of all Branch Offices under the Calcutta Division inter alia, to the effect that the period of strike by Class III and IV employees, will have to be treated as unauthorised absence on loss of pay and accordingly salary for the duration of the strike will have to be deducted on proportionate basis and the deduction would be effected from the salary payable for the month of April, 1981. A copy of this Circular is Annexure 'C' of the Writ Petition. Then on 23rd April 1981 the Assistant Divisional Manager (Personnel) issued a Circular to the Divisional Manager (Accounts) and other Officers under the Calcutta Division reproducing the next Teleprinter message received that apart from the deduction of salary for the strike period for the month of April 1981 the P.F. contributions and the House Rent Allowance should also be adjusted for the said period. A copy of this Circular is Annexure 'D' to the petition.;