State Bank's Staff Union (Madras Circle) vs The State Bank of India

Nainar Sundaram. J.

This writ appeal is directed against the order of the learned single Judge in W.P. No. 14664 of 1989. The petitioner in the writ petition is the

appellant herein. The respondents in the writ petition are the respondents herein. Convenience suggests that wherever it is necessary we adopt the

nomenclature assigned to the parties in the writ petition, while discussing the relevant aspects in this judgment of ours. The petitioner filed the writ

petition putting forth the following prayer :

For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Honourable Court may be pleased to call for the records

relating to the Circular of the third-respondent bearing. No. Per. 59, dated 12th October 1989 including the said circular and quash the same by

issue of writ of certiorarified mandamus or any other appropriate writ of like nature under Article 226 of the Constitution of India and

consequentially direct the respondents not to make deduction of one day''s wage from the salary and allowance payable to the workmen (Award

Staff) for the month of November, 1989 or for any subsequent month/months for their resorting to strike on 16th October 1989 and pass such

further or other order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case and thus render justice.

The factual background on which the petitioner came to this court requires delineation. On 9th June 1989, there were settlements arrived at

between the employees of the State Bank of India, represented by the All India State Bank of India Staff Federation, hereinafter referred to as the

Federation and the State Bank of India, hereinafter referred to as the bank. The settlements covered the conditions of service of the employees.

We are not, for the purpose of resolving the controversy in the writ appeal concerned with the salient features of the terms of the settlements. The

bank declined to implement the terms of the settlements on the ground that the approval of the Central Government was required before such

implementation. The bank also postponed forwarding the copies of the settlements to the authorities concerned, as contemplated under Rule 58(4)

of the Central Rules under the Industrial Disputes Act, 1947, hereinafter referred to as the Act, on the very same ground of need to obtain the

approval of the Central Government. The Federation resented this attitude of the bank, and has been making demand after demand calling upon

the bank to implement the terms of the settlements and forward the copies to the authorities concerned. The bank stood by its stand that without

the prior approval of the Central Government the implementation of the terms of the settlements is not feasible and copies would be forwarded to

the authorities concerned only after such approval. On 1st September 1989, the Federation issued a notice stating that the employees will go on

strike on 18th, 28th and 29th, September 1989, with a clarification that so far as the Bengal and Bangalore circles are concerned, the employees

there will go on strike on 17th, 27th and 28th September 1989, instead of 18th, 28th and 29th September 1989. The Federation, after much

correspondence, by itself forwarded the copies of the settlement to the various authorities on 29th September 1989. Pursuant to the strike notice

dated 1st September 1989, the Conciliation Officer initiated and prosecuted proceedings on various dates, as reflected in the minutes made

between 14th September 1989 and 25th October 1989, as per copies disclosed. The Federation gave a further notice of strike on 1st October

1989 while the proceedings were in progress informing about the employees of the bank going on strike on 16th October 1989. The employees of

the bank did strike work on 16th October 1989. The bank had issued the circular P.R. 59 on 12th October 1989, stating that in the event of the

proposed strike materialising, the salaries of the employees for the days the employees went on strike shall be deducted on the principle ""no work

no pay"". That is how the employees through the Federation came to this Court by way of the writ petition projecting the above prayer.

The learned single Judge, who heard and disposed of the writ petition, found that the strike was justified. However, the learned single Judge held

that the strike having been resorted to during the pendency of the conciliation proceedings was an illegal one, coming within the mischief of Section

22(1)(d) of the Act and hence the employees cannot grumble with reference to the deduction of the wages during the day of strike. The learned

single Judge also discussed the question as to whether the settlements themselves were inchoate and remained unenforceable, by virtue of non-

compliance with Rule 58(4) and gave the answer in the affirmative. Further, the learned single Judge also adopted the ratio expressed in the latest

pronouncement of the Supreme Court in Bank of India v. T. S. Kelawala and others 1990-II-LLJ-39 wherein it has been countenanced that,

irrespective of the fact whether the strike is legal or illegal, the employees are liable to loose the wages for the period of strike. As a result, the

learned single Judge dismissed the writ petition and this writ appeal, as stated above, is directed against the order of the learned single Judge.

Mr. B. R. Dolia, learned counsel for the employees, would first endeavour to submit that in the eye of law, there was no conciliation at all which

the conciliation officer could be stated to have had been lawfully seized of and hence the strike resorted to and actually held on 16th October 1989

would not come within the mischief of Section 22(1)(d) of the Act, which prohibits strikes during the pendency of conciliation proceedings and

seven days after the conclusion of such proceedings. According to the learned counsel for the employees, the settlements put an end to the

industrial dispute over the conditions of service of the employees and thereafter the stage was reached only with reference to the implementation of

the terms of the settlements and there could not be an industrial dispute at all within the meaning of the Act over the implementation of the terms of

the settlement and consequently there could not be a conciliation over any such matter so as to become conciliation proceedings within the meaning

of the Act.

Mr. M. R. Narayanaswami, learned counsel for the bank, however, contends that what the Conciliation Officer prosecuted and in which the

parties participated was nothing short of conciliation proceedings within the meaning of the Act. According to the learned counsel for the bank, on

the very receipt of the notice of strike by the Conciliation Officer, the conciliation proceedings shall be deemed to have commenced as per the

language of Section 20(1) of the Act and Section 12(1) when it says that the Conciliation Officer shall hold conciliation proceedings where the

dispute relates to a public utility service and notice u/s 22 has been given, only speaks about the duties of Conciliation Officers to hold conciliation

proceeding and it has nothing to do with the commencement of the conciliation proceedings which by the force of the language in Section 20(1) of

the Act must be deemed to have commenced on the receipt of a notice of strike by the Conciliation Officer. Learned counsel for the bank would

also submit that it cannot be accepted, as universal rule, that no dispute or difference would arise over a settlement and a dispute or difference of

the present nature, which was before the Conciliation Officer in the present case, related to the question as to when the terms of the settlement

could be implemented - after obtaining the approval of the Central Government or without it and this dispute or difference certainly related to the

terms of employment or conditions of labour and viewed from this angle, the proceedings prosecuted before the Conciliation Officer could have no

other legal colour except that of conciliation proceedings.

Now we proceed to assess the question as to whether there was conciliation proceedings within the meaning of the Act, pending before the

Conciliation Officer on the date of the strike, namely, 16th October 1989. First, we have to keep in mind the relevant legal concepts, as could be

gleaned from the provisions of the Act itself. Section 2(d) defines Conciliation Officer as follows :

2(d) : ''Conciliation Officer'' means a Conciliation Officer appointed under this Act"".

Even at this juncture, we must refer to Section 4 relating to the appointment of Conciliation Officers. That provision is in the following terms :

Conciliation Officers :- (1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks

fit, to be Conciliation Officers, charged with the duty of mediating in and promoting the settlement of Industrial disputes.

(2) A Conciliation Officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified

industries and either permanently or for a limited period.

The Conciliation Officers are appointed for and they are charged with the duty of mediating in and promoting the settlement of industrial disputes.

The Act is intended to make provision for the investigation and settlement of industrial disputes and for certain other purposes. The preamble to the

Act reads,

Where it is expedient to make provision for the investigation and settlement of industrial disputes, and for certain other purposes hereinafter

appearing

The duties and obligations of the Conciliation Officer cannot stand disassociated from the policy and object behind and Act and the purposes for

which he is appointed. ""Conciliation proceedings"" is defined in Section 2(e) of the Act in the following terms :

2(e) ""Conciliation Proceedings"" means any proceeding held by a Conciliation Officer or Board under this Act"".

Such proceeding certainly must relate to mediation in and promotion of settlement of industrial disputes. Though the expressions used are ""any

proceeding"" in Section 2(e) of the Act, such proceeding could only relate to an industrial dispute. This we say applying the well known maxim that

the words of a statute when there is a doubt about their meaning, are to be understood in the manner in which they best harmonise with the

subject of the enactment and the object which the Legislature has in view; their meaning is found not so much in strictly grammatical and

etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used and the object to be

attained"". (Vide Maxwell on Interpretation of Statutes, Twelfth Edition). The first and the foremost question that calls the attention of the Court is

what is an industrial dispute ?"". Even this is a matter of a statutory definition u/s 2(k) of the Act, which runs as follows :

2(k) : ""industrial dispute"" means any dispute or difference between employers and employers, or between employers and workmen, or between

workmen and workmen, which is connected with the employment or with the conditions of labour, of any person

The definition of an industrial dispute can be divided into three parts :

(1) there must be a dispute or difference :

(2) the dispute or difference must be between employers and and employers or between employers and workmen or between workmen and

workmen

(3) the dispute or different must be connected with the employment or non-employment or the terms of employment or with conditions of labour of

any person.

The first part refers to the factum of a real dispute or difference. The second part refers to the parties to the dispute. The third relates to the subject

matter of the dispute and that subject matter should relate to any one of two matters, namely, employment or non-employment and terms of

employment or conditions of labour of any person. It is not possible to conceive of an industrial dispute within the meaning of the Act unless and

until all the three conditions stand satisfied. For the purpose of the present case, it is not necessary to concentrate upon the first two conditions.

The controversy, in reality and in substance, is raging over only the satisfaction or otherwise of the third conditions. Even with regard to the third

condition, we are not concerned with the employment or non-employment of a person. We are concerned only with the terms of employment or

conditions of labour. We will presently advert to, as to whether the dispute in the present case related to the terms of the employment or conditions

of labour taking note of the submission made by the learned counsel appearing on both sides. The next provision on which we must bestow our

attention is Section 2(p), which defines settlement as follows :

2(p) : ""settlement"" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer

and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in

such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the

Conciliation Officer"".

Section 12 refers to duties of Conciliation Officers and the section runs as follows :

Duties of Conciliation Officers :

(1) where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a

notice u/s 22 has been given, shall, hold conciliation proceedings in the prescribed manner.

(2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters

affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a

fair and amicable settlement of the dispute.

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the Conciliation Officer

shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a

memorandum of the settlement signed by the parties to the dispute.

(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation send to the

appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for

bringing about a settlement thereof together with a full statement of such facts and circumstances, and the reasons on account of which, in his

opinion, a settlement could not be arrived at.

(5) If on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a

Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a

reference it shall record and communicate to the parties concerned its reasons therefor.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter

period as may be fixed by the appropriate Government.

Provided that, subject to the approval of the Conciliation Officer, the time for the submission of the report may be extended by such period as may

be agreed upon in writing by all the parties to the dispute.

Section 12(1) says that the Conciliation Officer may, where any industrial dispute exists or is apprehended, hold conciliation proceedings, and he

shall hold conciliation proceedings where the dispute relates to a public utility service and a notice u/s 22 has been given. The mere giving of a

strike notice would not legally give a lever for the Conciliation Officer to hold conciliation proceedings. There should be further an industrial dispute

existing or apprehended. This is the plain and unambiguous impression which we get on a harmonious reading of this provision with the other

relevant provisions, though Mr. M. R. Narayanaswamy, learned counsel appearing for the bank has a different construction to offer, which we

shall presently discuss. Section 20 speaks about commencement and conclusion of proceedings and the same may also stand extracted as follows :

Commencement and conclusion of proceedings :

(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out u/s 22 is received by the

Conciliation Officer or on the date of the order referring the dispute to a Board, as the case may be.

(2) A conciliation proceeding shall be deemed to have concluded

(a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;

(b) where no settlement is arrived at, when the report of the Conciliation Officer is received by the appropriate Government or when the report of

the Board is published u/s 17, as the case may be; or

(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal, u/s 10 during the pendency of conciliation proceedings.

(3) Proceedings before an arbitrator u/s 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the

date of the reference of the dispute for arbitration or adjudication as the case may be and such proceedings shall be deemed to have concluded on

the date on which the award becomes enforceable u/s 17A"".

Then we come to Section 22, which prohibits strikes and lock-outs in public utility service which in the case on hand. Of Section 22, we are to

concern ourselves more with Section 22(1)(d) and the same stands extracted as follows :

Prohibition of strikes and lock-outs - (1) No person employed in a public utility service shall go on strike in breach of contract -

(d) during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings.

The proposition relating to conciliation proceedings as we could glean from the provisions of the Act, could be summed up as follows : The

Conciliation Officer is appointed and charged with the duty of mediating in and promoting the settlement of industrial disputes. Conciliation

proceedings could mean and mean only such proceedings held by a Conciliation Officer, and nothing else. It is not each and every dispute of

whatever nature it be, that could be the subject matter of conciliation proceedings. The dispute must necessarily by an industrial dispute as defined

by the Act. There could be very many ideological disputes or differences over very many issues between the persons enumerated in Section 2(k),

but they cannot get elevated to or get the legal colour of an industrial dispute unless those disputes or differences relate to and are connected with,

the employment or non-employment or the terms of employment or the conditions of labour of any person. As already noted, in the present case,

neither side says that there was a dispute relating to employment or non-employment of any person. We are left only with the other aspect, namely,

the terms of employment or the conditions of labour.

In Conway v. Wade (1909 Appeal Cases 506), the plaintiff Conway was in employment under a firm. The Plaintiff had been fined by the union

and he had not paid. The defendant Wade in order to compel the plaintiff to pay the fine due to the union and to punish him for not paying it,

procured the firm''s foreman to dismiss him by threats that unless the plaintiff was dismissed, the union-men in their service would leave off work.

The plaintiff had to quit his employment in consequence, and so suffered damages. The question arose as to whether Section 3 of the Trade

Disputes Act, 1906, on the ground that the act was done by a person in contemplation or in furtherance of a trade dispute and hence not

actionable will come in the way of the plaintiff maintaining the suit. It must be noted here that the definition of Trade Dispute u/s 5(3) of the Trade

Disputes Act, 1906, runs on lines similar to the definition of industrial dispute under the Act. From what Lord Loreburn L.C. spoke, the following

passages are worth nothing :

Manifestly it is essential to any defence under this section for the defendant to show that the act complained of was done in the contemplation or

furtherance of a trade dispute. Otherwise the section cannot possibly apply. Now the jury in addition to their other findings have explicitly found

that there was no trade dispute either existing or contemplated by the men, which has been properly taken to mean that the act complained of was

not done in contemplation or furtherance of a trade dispute Judge O''Connor was satisfied with this verdict, as was the Divisional Court. In the

Court of Appeal, however, the learned judges found this fact the other way, and thereupon entered judgment for the defendant.

.. .. .. .. ..

Trade dispute"" is a familiar phrase in earlier Acts of Parliament, and is defined in this Act. I do not know that the definition is of much assistance. If

this section is to apply there must be a dispute, however the subject-matter of it be defined. A mere personal quarrel or a grumbling or an agitation

will not suffice. It must be something fairly definite and of real substance.

If the Act is to be interpreted or applied in the view that stirring up strife is the aim and object of any part of it, then indeed it will be a fountain of

bitter waters"".

In the words of Lord Shaw of Dunfermline :

It is no doubt true that by Section 5, sub-section 3, the expression ""trade dispute"" receives a very wide interpretation. It means ""any dispute

between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms

of the employment of any person"" etc., But I cannot see my way to hold that ""trade dispute"" necessarily includes accordingly every case of

personal difference between any one workman and one or more of his fellows. It is true that after a certain stage even such a dispute, although

originally grounded, it may be, upon personal animosity, may come to be a subject in which sides are taken, and may develop into a situation of a

general aspect containing the characteristics of a trade dispute, but until it reaches that stage I cannot hold that a trade dispute necessarily exists"".

In Huntley V. Thornton (1957) I AII E.R. 234. The plaintiff was a member of a trade union, the trade union instructed all its members to go on

strike, the plaintiff refused to strike on the ground that the decision to strike was contrary to the rules of the trade union, ultimately the plaintiff was

expelled from the trade union for disrespectful attitude; not only that, the employment of the plaintiff elsewhere was also prevented, the plaintiff

claimed damages for conspiracy and intent to injure him, a contention was raised u/s 3 of the Trade Disputes Act. 1906 that the action was not

maintainable as the act was done in contemplation or furtherance of a trade dispute. Harman, J. repelled the contention in the following terms :

On the whole I have come to the conclusion that this was not a trade dispute. The defendants were not asserting a trade right for they knew they

could not procure the plaintiff''s expulsion from the union. The dispute, if it could be so called, had become an internecine struggle between

members of the union and no interests of ""the trade"" were involved. It was a personal matter. Behind these considerations lies a more fundamental

point, namely, whether the committee''s actions were ''in furtherance of a trade dispute''. In my judgment, this raises the same question as the issue

of conspiracy. If, as I have held, the paramount object of the committee was to injure the plaintiff, then that was the object in furtherance of which

they acted. They did not intend to further the dispute arising out of the plaintiff''s refusal to strike - that was settled by higher authority, they

intended to injure the plaintiff in his trade by their embargo, and it was to that end that their actions were directed. They were not furthering a trade

dispute, but a grudge, and the Act does not protect them"".

Once the dispute or difference, connected with the employment or non-employment or the conditions of labour of any person, exists or is

apprehended, the Conciliation Officer can legitimately initiate conciliation proceedings. The stage of the dispute or difference is not of much

consequence. In Beetham v. Trinidad Cement. Ltd. (1960) I AII E.R. 274 there were dismissals of workmen, the employer ignored the attempts

of the union to discuss the cases, refused to adopt even the suggestion of the Commissioner of Labour, ultimately a board of enquiry was

appointed, the employer objected on the ground there was no trade dispute and it was held ""there was a ""difference"" between the union and the

company at the time of the appointment, viz., the union had claimed bargaining status and the company refused to recognise the union"". In the

words of Lord Denning :

By definition, a trade dispute exists wherever a ""difference"" exists and a difference can exist long before the parties become locked in combat. It is

not necessary that they should have come to blows. It is not necessary that they should have come to blows. It is sufficient that they should be

sparking for an opening. And it seems to their Lordships that the parties had reached that point here, even in regard to the claim for bargaining

status. The union had applied for bargaining status. The company had ignored the request, just as it had ignored previous request"".

Keeping aside the question of the stage of the dispute or difference, our endeavour is to find out as to whether there was a dispute or difference

which was an industrial dispute within the meaning of the Act. In N. K. Sen v. Labour Appellate Tribunal of India 1953-I-LLJ-6 Chagla, C.J.,

expressed the view that not every controversy or every difference of opinion between the employer and the employees, which constitutes a dispute

or difference within the meaning of Section 2(k) of the Act. The following observations of the learned Chief Justice require extraction (P9) :

Now, in order that a controversy between workmen and employers can become an industrial dispute, two condition are necessary. It must be a

dispute and it must be an industrial dispute. There is no difficulty in understanding what ""industrial dispute"" is because it is clearly defined in Section

2(k). A controversy which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of

an industrial controversy. But it is not enough that it should be an industrial controversy, it must be a dispute and in my opinion it is not every

controversy or every difference of opinion between workmen and employers which is constituted a dispute or difference within the meaning of

Section 2(k). A workman may have ideological differences with his employer, a workman may feel sympathetic consideration for an employee in

how own industry or in other industry, a workman may feel seriously agitated about the conditions of labour outside our own country, but it is

absurd to suggest that any of these factors would entitle a workman to raise an industrial dispute within the meaning of Section 2(k) "".

Shah, J. in the very same pronouncement, viewed the question in the following manner (PP 12-13) :

In my view the key words of the definition are ""dispute or difference"". The expression ""dispute or difference"" as I will presently show from the

scheme of the Act, are not intended to include mere metaphysical or philosophical controversies between employers and employees or between

employers themselves or between workman and workmen. The expression ""dispute or difference"" as used in the Act must in my view mean a

controversy which is fairly definite and of real substance and being connected with the employment or non-employment or the terms of

employment or with the conditions of labour, is one in which the contesting parties are directly and substantially interested in maintaining their

respective contentions. If that connotation is adopted, then, in my view it would exclude all theoretical, metaphysical or philosophical controversies.

It would also exclude mere ideological contests or differences, and would bring within the definition only those disputes in which the contestants are

seeking to raise definite disputes of substance in which both the parties are themselves directly and substantially interested"".

Very many disputes or differences could exist between the employer and the employees, even after a settlement has been arrived at, in and by

which the industrial dispute has been settled. They may even border to frivolity or whimsicality rather then of any substances. But, the adamancy or

obduracy with reference to such particular stand taken by one or the other will not convert the dispute or difference into an industrial dispute. One

may say ""I do not like the colour or thickness of the paper in which the settlement is incorporated and hence I would not respect it"". The other may

say, ""I did not relish the demeanour and attitude of the person, who subscribed the signature to the settlement and hence I would not respect it"".

There may be contingency where, one may say that ""I would like to place the settlement before the altar of my personal deity and only thereafter I

would implement it"". Another one may say that ""I will have to obtain the blessing and approval of my elders, or the founders of the concern and

then only implement the settlement"". One may even go to the extreme of tearing off the settlement after it is duly signed and running away from the

venue and declining to implement its terms. Will these situations and attitudes have any sanctity in the eye of law, so as to bring the matter within the

meaning of an industrial dispute ? We cannot afford to be exhaustive, and we can only conceive of illustrations. The Legislature is careful in the

choice of words, when it defined an industrial dispute u/s 2(k) of the Act. Each word has got a legal and factual portency. Dispute or difference,

for the sake of repetition we must point out, must relate to either the employment or non-employment or the terms of employment or the conditions

of labour of any person. Will the contingencies, which we recapitulated by way of illustrations, amount of industrial disputes, so as to cloth the

Conciliation Officer with the obligation to conciliate it and the proceedings so initiated and prosecuted assuming the character of conciliation

proceedings ? Our answer is in the negative.

Merely because the Conciliation Officer conceived the idea of holding a discussion on coming to known of the particular attitude of either the

employer or employees with regard to the implementation of the settlement, after the same has been duly arrived at, and also being confronted with

belligerent and uncompromising attitude of the parties, may be resulting in an explosive situation, that will not make the said proceedings

conciliation proceedings in the eye of law. In K. S. Mani Iyer v. Bombay Anand Bhavan, Coimbatore 1962-63) 23 F.J.R. 541 S. Jagadisan, J.

held that the proceeding must be a valid proceeding and mere factual pendency of any proceeding would not do. The head-note in the report

correctly brings forth the principle countenanced by the learned Judge and we are extracting it as follows :

The foundation of the jurisdiction of a Labour Court to entertain an application u/s 33-A of the Industrial Disputes Act, 1947, and the cause of

action of the aggrieved workman to prefer such an application is a contravention of the provisions of Section 33 of the Act. It is implicit in Section

33 that the proceeding, the pendency of which is alleged to be a bar against the employer''s act and conduct, must be a valid proceeding, the mere

factual pendency of any proceeding before the Labour Court would not attract the application of Section 33. Therefore, when the proceedings

pending before a Labour Court have been held to be invalid by the High Court on the ground that there was not a valid reference under the Act,

the provisions of Section 33 would not apply and no application u/s 33-A would be maintainable"".

Equally so, the participation of the parties in such proceedings is of no consequence at all. Such participation will not by itself make the

proceedings conciliation proceedings, if otherwise they do not fit in within the legal concept of conciliation proceedings - vide Employers.

Thungabhadra Industries Ltd., v. Workmen 1973-II-LLJ-283 Even if the conciliation proceedings have culminated or resulted in a reference being

made, that will not alter the position. The question, when a contingency therefore arises, will be open for discussion as to whether it is conciliation

proceedings in the eye of law or not.

It is true that in the present case, a notice of strike was issued on 1st September 1989 and that promoted the Conciliation Officer to venture to

hold discussions, and in fact he held discussions, as reflected in the various proceedings of the Conciliation Officer. The parties were actually and in

substance at variance only with reference to the implementation of the settlement. The issuance of the strike notice by itself will not tilt the balance

in favour of holding that an industrial dispute has come into existence for the Conciliation Officer to conciliate. The very jurisdiction to commence

conciliation does not come to the Conciliation Officer on his receiving a bare strike notice. The strike notice in the present case related to a public

utility service, as the bank indisputably is Mr. M. R. Narayanaswamy, learned counsel for the bank, urged the proposition that when the strike

notice has been issued u/s 22 of the Act, and that has been received by the Conciliation Officer the conciliation proceedings must be deemed to

have commenced without any further formality and one need not strain over the question as to whether the conciliation, in fact, related to a dispute

or difference which was an industrial dispute within the meaning of the Act. Learned counsel for the bank mainly relies on the language of Section

20(1) of the Act, which contemplates that a conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or

lockout u/s 22 is received by the Conciliation Officer. First of all we must point out that we could not be content to barely find out as to whether

conciliation proceedings commenced on a particular date. We are obliged to find out as to whether the consultation proceedings were in progress

or in other words were pending before the Conciliation Officer so as to attract the mischief of Section 22(d) of the Act. Unless there was

pendency of conciliation proceedings at the time when the employees went on strike, it is not permissible to characterise the strike as illegal. It is

only in this connection the holding of conciliation proceedings becomes relevant. The jurisdiction to hold Conciliation proceedings could be

acquired by the Conciliation Officer only when an industrial dispute exists or apprehended or where the industrial dispute relates to a public utility

service and notice of strike u/s 22 has been given. As already noted though the expression ""dispute"" alone occurs in the second limb of Section

12(1) of the Act. We cannot read it disassociated from the first limb of that provision. The first limb of the provision specifically refers to ""industrial

dispute"" and what as been referred to as dispute in the second limb could not have any other meaning than that of an industrial dispute under the

Act. The rule of construction which we have already adverted to while referring to the definition of ""conciliation proceeding"" in Section 2(e) of the

Act, guides us to express this view and this view alone on this question. We are not able to subscribe out support to the theory of the learned

counsel for the bank that on the bare issuance of a strike notice and receipt of the same by the Conciliation Officer, the Conciliation Officer

assumes the jurisdiction to hold or prosecute conciliation proceedings within the meaning of the Act. The strike notice must have relevance to an

industrial dispute existing or apprehended. The resort to strike and the issuance of the strike notice could be the reaction of the labour in very many

contingencies, which we need not visualise and set down. But, unless the strike notice relates to an industrial dispute, existing or apprehended,

prosecution of any proceedings by the Conciliation Officer will not fit in with the concept of prosecution of conciliation proceedings within the

meaning of the Act. The pendency of conciliation proceedings with reference to working out the rights and obligations of the parties and penalising

them for acting in contravention of certain provisions of the Act in such a contingency, are of much legal significance and consequence. We cannot

afford to water down the legitimate construction to be put on the provisions of the Act with reference to that crucial aspect, which may prove

decisive in very many situations. Mr. B. R. Dolia, learned counsel for the employees drew our attention to the following passage occurring in John

Bowers ""A Particular approach to employment Law"".

To be protected, the individual must be acting in contemplation or furtherance of a trade dispute. The fact of the strike itself cannot be a dispute, it

must be the manifestation of a grievance over something comprised within the definition of trade dispute.

It may be a matter of some difficulty to identify properly what a strike is connected with, especially when it is called for a variety of different

reasons. However, in some cases the reasons for action clearly having nothing to do with pursuing a trade dispute"".

Our attention was also drawn to the pronouncement in B. B. C. v. Hearn (1978) I All E.R. 111 where it has been countenanced that the

employees declining to give the work required to them, in the absence of a trade dispute will not turn the dispute into a trade dispute. We have

found it worthwhile to extract the following passage occurring in the discussion by Lord Denning MR :

If printers in a newspaper office were to say ""We do not like the article which you are going to publish about the Arabs, or the Jews, or on this or

that political issue, you must withdraw it. If you do not do so, we are not going to print your paper"". That is not a trade dispute. It is coercive

action unconnected with a trade dispute. It is an unlawful interference with the freedom of the press. It is a self-created power of censorship. It

does not become a trade dispute simply because the men propose to break their contracts of employment in doing it. Even if the men have strong

moral case, saying, ""we have a conscientious objection to this article. We do not want to have anything to do with it"", that does not turn it into a

trade dispute. The dispute it about the publication of the article, not about the terms and conditions of employment"".

Again and again, we have to come back to the crucial point as to whether there was an industrial dispute for the Conciliation Officer to

conciliate. We are obliged to refer to certain features, which do have relevancy to the question as to whether what the Conciliation Officer did or

what happened before the Conciliation Officer could acquire the legal characteristics of conciliation proceedings. There is a feature, to which our

attention was drawn, and that is, if in fact there was conciliation proceedings prosecuted before the Conciliation Officer, that must have ended -

there having had been no consensus between the parties, in the Conciliation Officer sending a report, as contemplated u/s 12(4) or Section 20(2)

(b) of the Act and nothing of that sort happened in the present case. Another feature to which our attention was drawn, was that when there is an

industrial dispute relating to a public utility service as the bank is and a notice u/s 22 has been given, the appropriate Government unless it

considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, shall make a reference. This is the

implication of the second proviso to Section 10(1) of the Act. This also did not happen in the present case. It was further pointed that a dispute or

difference of the present nature could not get referred either to a Labour or an Industrial Tribunal for adjudication u/s 7 or Section 7-A of the Act,

since it could not fall within the ambit of any of the entries in Schedule II or Schedule III of the Act. These features are being relevantly urged as

indicating that there was no industrial dispute at all for any authority under the Act to follow what have been set down under the provisions of the

Act.

The settlement could be impeached as not binding on a particular section of workmen. The settlement could be impeached as having been

brought about by coercion, fraud, undue influence, misrepresentation and other vitiating circumstances. The settlement could be impeached on the

ground that it suffers a legal lacuna. One party would resile from the settlement on very many grounds. We cannot visualise and set down

exhaustively as a sort of glossary as to the circumstances under which there could be a resilement from the impeachment of the settlement. In the

sphere of employer-employees relationship in industrial parlance, things unfair do happen and one does not try to find out the motive, intention or

reason behind and dispute or difference and one has to find out as to whether the dispute or difference could assume the character of an industrial

dispute, so as to bring in the legal implications or consequences thereof. In a case where there is resilement from the settlement on the ground that it

was arrived at as a result of fraud, misrepresentation of undue influence or that it is not binding on the parties, the dispute or difference may assume

the character of an industrial dispute and may require conciliation and further process to be prosecuted (Vide Adamji M. Badri v. Labour Officer

1981-I-LLJ-367. In Poona Mazdoor Sabha v. G. K. Dhutia 1956-II-LLJ-319there was a settlement between the employer and the employees.

Yet, the employees raised demands over the very same subject matter covered by the settlement and wanted initiation of conciliation and this was

not acceded to by the Conciliation Officer. The employees came to Court asking for a Writ of mandamus to compel the Conciliation Officer to

perform his statutory duty and initiate conciliation proceedings u/s 12 of the Act. Chagla, C.J., speaking for the Bench of the High Court of

Bombay, held that conciliation proceedings cannot be initiated when there is a settlement in force.

In Grahams Trading Co., v. Second Industrial Tribunal, West Bengal 1963-II-LLJ-153 a learned single Judge of the High Court of Calcutta

found that there was an award and the employer declined to implement the same and this declined led to an industrial dispute being raised by the

employees, which got referred for adjudication and also got adjudicated upon. The learned single Judge expressed the view that the

implementation of the award does not fall within the definition of an industrial dispute and hence there ought not to have had been a reference at all

for adjudication and if the employer was guilty of non-implementation of the award, the employer should have been proceeded against u/s 29 of

the Act, which speaks about penalty for breach of settlement or award or u/s 33-C(1) of the Act, for recovery of benefits under the award.

In Madras Bangalore Transport Co., v. Labour Court, Bangalore 1963 25 F.J.R. 244 a Bench of the High Court of Mysore was faced with a

complaint of contravention of Section 33(2) of the Act, where the expression ""during the pendency of any such proceeding"" occur, and it was

opined that the expressions have a clear reference to the proceeding referred to in Section 33(1) namely, ""any proceeding before a Conciliation

Officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute"" and it was held

as follows :

Two conditions have, therefore, to be fulfilled in order that sub-section (2) may apply, viz., (i) there must be a proceeding before one of the

authorities mentioned therein respect of an industrial dispute, and (ii) and proceeding must be pending.

Therefore, where a Labour Court comes to the conclusion that a reference made to it u/s 10 of the Act was incompetent and invalid, whatever

proceedings commenced before the Labour Court as a consequence of that reference are not proceedings under the Act but only proceedings

masquerading as such. There cannot be a contravention of Section 33(2) in respect of such a proceeding"".

In Bangalore Woollen Cotton & Silks Mills v. Workmen 1968-I-LLJ-555 it has been countenanced that where there is a subsisting award

binding on the parties, there is no jurisdiction to consider the same points in a fresh reference, when the earlier award had not been terminated and

hence the reference was incompetent.

In Pheros & Co., v. Labour Court 1971 Lab. I.C. 600this is what a Bench of the High Court of Assam and Nagaland, held :

Where, during the pendency of the proceeding u/s 33(2), the Labour Court comes to the conclusion that the main reference u/s 10 (during which

the application u/s 33(2) was made) was not in respect of an industrial dispute as such, the proceeding becomes non-est for the purpose of Section

33 and the jurisdiction of the Labour Court to continue hearing of the application u/s 33 is ousted.

Once the Industrial Court has decided that the main reference was incompetent as there was no ""industrial dispute"" it lost its jurisdiction to do

anything further about the application under-Section 33(2) which arose out of the main reference. If, however, the reference were not rejected on

the ground of incompetency but the dispute was only adjudicated on merits and the proceedings before the Tribunal came to an end under the

relevant provisions of the Act, mere termination of the proceedings would not oust the jurisdiction of the Court to continue the hearing the

application u/s 33. This is not the same thing as having jurisdiction to go on with an application when the subject matter of the reference has been

held to be not an industrial dispute"".

In Employers, Thungabhadra Industries Ltd., v. Workmen (supra), there was an earlier award, which was not terminated and demands were

raised on the very same subject matter and a reference was made for adjudication and in fact adjudication took place. The Supreme Court in that

contingency held that the reference was not competent.

In Shalimar Paints v. Third Industrial Tribunal 1947 Lab I.C. 213 a Bench of the High Court of Calcutta was concerned with the complain u/s

33-A of the Act regarding violation of Section 33 of the Act, and it found that the main reference u/s 10(1) of the Act had been declared invalid

and quashed and it was held as follows :

Where the main reference u/s 10(1) has been declared invalid and quashed a proceeding cannot be said to be pending before the Tribunal as

contemplated by Section 33(2) of the Act, so as to enable employee to invoke Section 33-A. The mere fact that a reference u/s 10(1) was

pending sometime does not by itself entitle an employee to claim relief u/s 33-A of the Act when the main reference stands quashed"".

In F. A. C. T. Employees'' Association and others v. Management of F. A. C. T. Ltd., 1983-I-LLJ-240the learned single Judge of the High

Court or Kerala dealt with case where a long term settlement of the dispute between the employer and the employees was reached by conciliation

u/s 12 of the Act. Yet, one of the unions raised certain issues covered by the settlement before the Conciliation Officer and the latter proposed to

hear the parties. This was objected to by the other unions and that objection was over-ruled and the Conciliation Officer proceeded to go on

merits. It was under the these circumstances the Court was approached. The learned single Judge of the High Court of Kerala expressed the view,

as no industrial dispute can be there during the pendency of a settlement, the Conciliation Officer cannot under the guise of ""resolving an otherwise

impossible situation"", assume the jurisdiction, he has not and neither the employer nor the union nor the employees can afford to ignore the

settlement.

What it is, that the parties were at loggerheads ? The terms and conditions, which were acceptable to the parties had been settled. The parties

had put those terms and conditions in black and white. The parties had subscribed their signatures to the deeds of settlements. Were they any

longer at variance with the terms of employment or conditions of labour ? Certainly not. The employer, the bank would advance a theory that the

implementation of the terms and conditions of the settlement would have to await the approval of the Central Government. The bank had not taken

up a stand that the terms and conditions of the settlement would not be implemented at all for all times to come, on any other reason, valid or

otherwise. The bank had not impeached the settlement. The bank had not resiled from the settlement. The bank had conceived the idea of

obtaining the approval of the Central Government before implementing the settlement. This concept had no sanctity at all in the eye of law. It is not

claimed by the bank that any provision of law requires such approval. The bank sticks on to a theory of usual practice. In substance, the parties

having passed the stage of negotiation over an industrial dispute, and having settled their differences and disputes, had come to the stage of

implementation of the settlements. Bickerings between the parties had started only at that stage. No dispute or difference over the terms of

employment or conditions of labour survived. All such disputes and differences had been put an end to by the settlement. It must be noted here that

after this temporary phase of bickerings, the bank did obtain the approval of the Central Government and forwarded the copies to the authorities

concerned and the terms and conditions of the settlement have been implemented. This happened in July 1990. We could never call this period of

bickerings and differences as a period when an industrial dispute could be stated to be pending. As already seen, any dispute or difference is not

an industrial dispute. Viewed from above angle and the above light, there was no industrial dispute existing or apprehended for the Conciliation

Officer to initiate conciliation proceedings and prosecute them. Whatever proceeding the Conciliation Officer prosecuted was no conciliation

proceeding, which the law could recognise as such. The issuance of a bare strike notice without any industrial dispute existing or apprehended, the

prosecution of any proceeding pursuant to such notice and the participation of parties in such proceedings, all these factors are of no legal

consequences at all. There having had been no conciliation proceedings pending in the eye of law, the mischief of Section 22(1)(d) would not be

attracted.

As per our foregoing discussion, we are obliged to hold that there was no industrial dispute either existing or apprehended, since whatever

dispute or difference existed over the conditions of labour or terms of employment got settled as a matter of fact then the very initiation of any

proceeding and prosecution of the same would not come within the concept of conciliation proceedings in the eye of law. But, the bank has raised

a contention built on want of compliance with rule 58(4) of the Rules, saying that on account of this, the settlement remained inchoate; and the

disputes or differences covered by the settlement must be held to have remained open and hence the conciliation proceedings initiated and

prosecuted were in order, so as to attract the mischief of Section 22(1)(d) of the Act.

Before we go into this contention, we would like to examine as to what exactly happened in the present case. The bank did not once and for

all decline to forward the copies of the settlements as required by rule 58(4). On the ground of total failure to forward the copies of the settlements,

it is not the case of the bank, the settlement had fallen to the ground and hence it could not be enforced. The bank did not declare that it would not

at all forward the copies of the settlement. The validity of the settlement was not at all in issue before the Conciliation Officer. The bank was saying

that it would forward the copies only one the approval of the Central Government. That was the controversy before the Conciliation Officer. The

stage was never reached to say that the settlement had to be totally ignored as invalid and as non-binding on account of complete failure or refusal

to forward the copies. It was a case of postponement of compliance with rule 58(4) and not a case of total decline or failure to comply with it. Are

we to characterise this bickering or quarrel as a dispute or difference existing or apprehended over the terms of employment or condition of labour

? If we give an answer in the affirmative, we may be accused of having acted in ignorance of the legal concept of an industrial dispute. What

happened is only a dispute or difference with reference to forwarding the copies of the settlement as per rule 58(4), the employees asking the bank

to forward without delay and the bank delaying it on the ground of want of approval of the Central Government. Ultimately the copies got

forwarded and the settlement remained unscathed for full implementation. What was happening was a temporary phase of bickering or difference

of opinion or quarrel with regard to forwarding the copies. We will not venture to call it an industrial dispute and any discussion over it, a

conciliation proceeding. This discussion is enough to dispose of this contention.

Furthermore, we must note that the bank never raised a contention like this, either before the Conciliation Officer or in its counter in the present

writ petition. This contention seemed to have been specifically urged before the learned single Judge, in the course of submissions. Profuse was the

literature, including case law, exposed before us, by both the sides on this contention. To leave no aspect undiscussed, we are obliged to deal with

this contention, in the light of the submissions made by both the sides. This leads us to first examine the relevant provisions of the Act and the

Rules. Section 2(p) defines settlement as follows :

2(p) : ""Settlement"" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer

and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in

such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the

Conciliation Officer"".

Rule 58(4) of the Rules speaks about forwarding of copies of the settlement to the authorities mentioned thereunder and it runs as follows :

58(4) : Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceeding before a

Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Central Government, the Chief Labour

Commissioner (Central), New Delhi, and the Regional Labour Commissioner (Central), and to the Assistant Labour Commissioner (Central)

concerned.

Rule 75 contemplates the maintenance of a register of settlement in From ''O''. It is contended on behalf of the employees by their learned counsel

Mr. B. R. Dolia that the purpose of forwarding copies of the settlement is only for the maintenance of the register of settlements and nothing more

and its purpose cannot be magnified so as to make non-compliance with rule 58(4) taking away the very legal basis for the operation of the

settlement. Learned counsel for the employees in this connection would draw our attention to Section 19(1) and (2) of the Act and they reads as

follows :

19(1) : Period of operation of settlements and awards :- (1) A settlements shall come into operation on such date as is agreed upon by the parties

to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.

(2) Such settlement shall be binding for such period as it agreed upon by the parties and if no such period is agreed upon, for a period of six

months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties

after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the

settlement is given by one of the parties to the other party or parties to the settlement.

By the force of Section 19(1), the settlement shall come into operation on such date as agreed upon by the parties to dispute and if no date is

agreed upon, on the date on which the memorandum of settlement is signed by the parties to the dispute. Section 19(2) speaks about the

settlement being binding, where no period is agreed upon, for a period of six months from the date on which the memorandum of settlement is

signed by the parties to the dispute. Relying on these provisions, learned counsel for the employees says that when the parties have signed the

settlement, it comes into operation and the computation of the period of its currency, where no such period is agreed upon, commences from the

date of the signing of the settlement by the parties and nothing more is required to make the settlement effective and viewed in this light, rule 58(4)

cannot be interpreted so as to take away the rigour of Section 19(1) and (2). In his endeavour to impress upon us that failure to comply with rule

58(4) shall not be counted to say that the very settlement itself has not come into existence in the eye of law and it was ineffective and

unenforceable, he drew our attention to a number of pronouncements. In Kalinga Jute Products v. Presiding Officer, Industrial Tribunal 1980-I-

LLJ-239 a Bench of the High Court of Orissa was concerned with a case of a settlement arrived at between the parties, but the copy of it getting

forwarded only by the employer. There was a contention raised that copies of the settlement not having been ''jointly'' sent to the authorities as per

the State Rule in pari materia with rule 58(4), it was not a valid settlement and therefore not binding upon the parties. This is how the contention

was repelled (pp. 245-246) :

It is contended on behalf of opposite party No. 2 that this settlement not having been ''jointly'' sent to the authorities concerned was not a valid

settlement and, therefore, not binding upon the parties. Thus onus is clearly on the petitioner to show and prove that there existed a lawful

settlement. As already discussed above, the settlement Ext. A long with its annexures clearly indicate that all the disputes raised in the charter of

demands had been made subject-matter of the bipartite settlement which had been reduced into writing and had thereby been resolved. Assuming

that this settlement had been sent to the Government by the petitioner and not jointly as required by Rule 64(5) of the Rules, the question is

whether that would affect the validity of the settlement. Section 2(p) of the Act defines ''settlement'' as meaning ''a settlement arrived at in the

course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of

conciliation proceedings where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof as

been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer.'' On the evidence adduced before the

Tribunal, which is on record, there is no manner of doubt that the agreement has been signed by the parties in the manner prescribed by law, that

is, by Rule 64(2) of the Rules, and a copy thereof has been sent to the Conciliation Officer and the appropriate Government. Rule 64(5) requiring

that the copy of the settlement shall be joint sent, is a requirement is excess of Section 2(p) and cannot be held, therefore, to be mandatory.

Section 18(1) of the Act provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course

of conciliation proceeding shall be binding on the parties to the settlement and under sub-section (1) of Section 19 of the Act such settlement shall

come into operation on such date as is agreed upon by the parties to the dispute and if no date is agreed upon, on the date on which the

memorandum of the settlement is signed by the parties to the dispute. Reading both these provisions together it is clear that the settlement between

the parties came into operation on the date of signing that is, on 5th June 1976. It is not the intendment of law that the said operation is to be kept

in abeyance until after a copy has been jointly sent. Viewed from this angle also, requirement of joint sending is not mandatory so as to affect the

validity of the settlement or its coming into operation.

In Workmen of Hindustan Lever Ltd. v. The Management of Hindustan Lever Ltd. 1984-I-LLJ-388 the substantial question that arose for

consideration before the Supreme Court was as to whether a concluded agreement emerged between the parties by exchange of communications,

so as to be binding on them. The question was discussed and answered as follows : (p. 397) :

Having meticulously examined various references pertaining to various industrial disputes between the parties at different centres in India since the

agreement in 1957 in unquestionably emerges that the employer till the present reference never once even whispered that the agreement was not a

concluded agreement or that it was an inchoate one left hanging at the stage of negotiations. But in the present reference the contention raised was

that the agreement was not a concluded agreement because that is how the Tribunal has approached the problem. The Tribunal has observed in

this behalf as under : ''According to the management the three letters do not constitute an agreement because in an agreement there should be an

offer and the offer must be accepted as such. They have argued that the offer made in Ex. W.2 has not been accepted as such in Ex. W.3 ....."" The

employer which swore by the agreement and repeatedly succeeded in getting thrown out certain references at the threshold on account of the

agreement, now wants to counted that there was no concluded agreement and ignoring the whole history, the Tribunal falls into an error in

accepting this contention. The weight of evidence not only not at all referred to by the Tribunal but frankly wholly ignored clearly and unmistakably

lead to one and one conclusion alone that according to the employee there was the concluded agreement between the parties. It is a solemn

agreement, the agreement of which effective and wholesome advantage has been taken by the employer and when it now does not suit it, it, in

breach of the solemn agreement, wants to turn round and not only repudiate it but disown it as having never been entered into. No court of justice

can ever permit such a thing to be done.

As to how Courts should lean towards upholding agreement, this is what the Supreme Court observed (p. 398) :

If this is the ''underlying object behind enactment of the Act, the court by interpretative process must strive to reduce the field of conflict and

expand the area of agreement show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely,

to eschew industrial strife, confrontation and consequent wastage.

In Hindustan Zinc Workers Union and another v. Management of Agniquandala Lead Project, Hindustan Zinc Ltd. and others (1988-I-LLJ-

207), a learned single Judge of the High Court of Andhra Pradesh, dealt with the criticism that copies of the minutes reflecting the settlement were

not forwarded to the officers concerned. The learned single Judge found substantial compliance with the rule. The criticism was also repelled by

him in the following manner : (p. 217) :

Even assuming that there is failure to do so, in my opinion it is not fatal to the validity of settlement reached at the instance of the Assistant Labour

Commissioner. It must be borne in mind that transmission of copies to higher authorities is merely a procedural requirement to keep them informed

of the development in any dispute concerning the employer and the workmen. So long as the Assistant Labour Commissioner, who is the

conciliation officer, is seized of the matter and the settlement was reached at his instance and was duly attested by him, the omission to transmit

copies of the Memorandum of settlement to the higher authorities does not, in my opinion, invalidate the settlement. In any event, I am unable to

accept the plea that the transmission of copies should be held to be a mandatory requirement for the validity of the settlement. On the clear terms

of Section 2(p) of the Act read with Rule 58, it is clearly directory.

In the Management of Agnigundala Lead Project Hindustan Zinc Ltd. and others v. Hindustan Zinc Workers Union and another 1988-II-LLJ-

318 a Bench of the High Court Andhra Pradesh, dealt with the appeal directed against the decision of the learned single Judge in Hindustan Zinc

Workers Union and another v. Management of Agnigundala Lead Project, Hindustan Zinc Ltd. and other 1988-I-LLJ-207. Before the Bench, it

was argued inter alia that the minutes would not amount to a settlement. That argument was repelled as follows (pp. 321-322) :

This is a clear case where the management is guilty of dishonouring its commitments under a settlement, whether it is called the ''understanding'' or

the ''minutes of discussions''. The management took full advantage of the terms of the settlement, in implementation of which, the workmen on their

part called off the strike. The settlement was signed by responsible officers holding high ranks in the company, and it is too much for us to swallow

the contention of the management that the officers who represented the management at the conciliation proceedings on 25th March 1983 had

acted either without authorisation or in excess of the authorisation given to them. Are we to believe that the Chairman and the management were

not appraised of the terms of the agreement pursuant to which the strike was called off by the Union ? We have absolutely no hesitation in rejecting

the contention that it was without due authorisation that the management''s representative agreed to the terms of settlement, or that the Chairman

and the management were not aware of the terms of the agreement. The truth, on the other hand, is that after having trapped the union into an

agreement and after having taken advantage of that agreement, the management acted vindictively and dishonestly against the terms of agreement

on the pretext that the settlement was not binding on the management.

................................................

This arrogant and arbitrary attitude of the management is not certainly praise-worthy, and is not conducive for the promotion and maintenance of

industrial peace and harmony. The Union and the management are not equal in withstanding prolonged litigation; and other things being equal, to

further the ends of justice, the Court should normally lean towards the weak, namely, the workmen. Both the Industrial Tribunal and the learned

single Judge have on careful consideration of the facts and the circumstances of the case, entered the findings that the agreement dated 25th

March, 1983, was settlement within the meaning of Section 2(p) of the Act, and that it is binding on the management.

In R. Mathur v. Allahabad Bank and others 1990-I-LLJ-273 the Lucknow Bench of the High Court of Allahabad observed : (PP 275-276)

Even if the settlement is not in accordance with the prescribed form as contemplated under rule 58 of the Industrial Disputes (Central) Rules,

1957, it does not suffer from any defect. None of the parties have disputed or challenged the settlement. The agreement or settlement which has

not been terminated will operate as inviolable condition of service of the petitioner.

The observations of the Supreme Court in The Workmen of M/s. Hindustan Lever Ltd., and others v. The Management of M/s. Hindustan Lever

Ltd., (supra) that the Court by interpretative process must show its preference for upholding agreements, were followed by the Bench. What these

pronouncements tell us, is that the parties must be asked to respect their commitments arrived at by solemn settlements of industrial disputes, and

Courts should not encourage vituperative and vexatious attitudes, tending to disrupt and give a go-by to such settlements, on nice technical pleas,

may be having some foundation in or having semblance of law. It is only with legitimate anxiety, if not enthusiasm, Mr. B. R. Dolia, learned counsel

for the employees wants us to adopt dynamic interpretation of the relevant provisions of the Act and the Rules, so as to harmonise law with the

prevailing concepts and values, to make it an effective instrument for delivering justice. In this connection, our attention was drawn to the following

passage occurring in the pronouncement of the Supreme Court in The Municipal Corporation of Greater Bombay and others Vs. The Indian Oil

Corporation Ltd., :

The interpretation of every statutory provision must keep pace with changing concepts and the values and it must, to the extent to which its

language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast

changing society which is undergoing rapid social and economic transformation. The language of a statutory provision is not a static vehicle of ideas

and concepts and as ideas and concepts change, as they are bound to do in any country like ours with the establishment of a democratic structure

based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change.

It is elementary that Law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but

rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between

conflicting interests. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic

and political setting in which it is intended to operate. It is here that a Judge is called upon to perform a creative function. He has to inject flesh and

blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the

law with the prevailing concepts and values and make it an effective instrument for delivering justice.

Mr. B. R. Dolia, learned counsel for employees, was also submitting that the bank should not be allowed to take advantage of its own wrong

in withholding the forwarding of the copies. The employees had left the signed copies with the bank. The bank withheld the forwarding of the

copies to the authorities concerned as required by rule 58(4). They chose to forward the copies later. Can the bank allowed to plead this conduct

on its part, which apparently did not have any sanction of law behind it, to deprive the employees their wages ? The answer that comes to our

mind, is in the negative.

Mr. M. R. Narayanaswamy, learned counsel for the bank, would however contend that in the absence of forwarding copies of the settlement

to the authorities there was no settlement in the eye of law and hence the proceedings initiated and prosecuted by the Conciliation Officer were

nothing short of conciliation proceedings in the eye of law. Learned counsel for the bank would bank on the language of Section 2(p) defining,

''settlement'', when it speaks about ''a copy thereof has been sent .....'', where the settlement has been arrived at otherwise than in the course of

conciliation proceedings. Learned counsel for the bank, also relies on rule 58(4) and Form ''H'' to press forth his point that if the settlement is

arrived at in the course of conciliation proceedings, copies shall be sent to the authorities concerned. Learned counsel for the bank relies on the

following observations in Sirsilk Ltd. v. Government of Andhra Pradesh 1963-II-LLJ-647:

Therefore as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the Conciliation Officer it

becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its

coming into operation.

It must be pointed out that in that case, the Supreme Court was not adjudicating the present contention, but was dealing with a contingency where

after the Tribunal had sent its award to the Government for publication, but before such publication, the parties arrived at a settlement and wanted

the Government not to publish the award.

The main decision which the learned counsel for the bank relied on this question is the one in Workmen of M/s. Delhi Cloth and General Mills

Ltd. v. The Management of M/s. Delhi Cloth and General Mills Ltd. 1972-I-LLJ-99. In that case, there was a reference of an industrial dispute on

the cause of a workman by name Shibban Lal to the Industrial Tribunal. The management of M/s. Delhi Cloth and General Mills Ltd., raised a

preliminary objection that earlier an union which had taken up the cause of Shibban Lal, agreed by the settlement dated 9th June, 1965 not to

support his cause and withdrew it support to his cause and as a result the dispute relating to the dismissal of Shibban Lal was not an industrial

dispute. The Industrial Tribunal upheld this objection of the management. On the matter coming up before the Supreme Court, the validity of the

settlement was put in issue. The management pressed forth the aspect of non-compliance with rule 58(4) in that case to say that the settlement was

invalid and hence the reference of the dispute was quite in accordance with law. Two learned Judges of the Supreme Court examined the position.

There was a contention on the side of the workmen that there was non-compliance with rule 58(4). The contention that the parties were free to

arrive at a settlement of their dispute, and if they agreed to do so, then the agreement could not but be held to be binding on them, was not

accepted, and it was observed as follows (p 106) :

We do not think the management and the union can, when a dispute is referred to the Conciliation Officer, claim absolute freedom of contract to

arrive at a settlement in all respects binding on all workmen to which no objection whatsoever can ever be raised by the workmen feeling

aggrieved. The question of a valid and binding settlement in such circumstances is, in our opinion, governed by the statue and the rules made

thereunder. Reliance was next placed on Section 18(1) to support the binding character of the settlement. This sub-section for its proper

construction must be read with the other sub-sections and the relevant rules, in the light of the definition of ''settlement'' as contained in Section 2(p)

of the Industrial Disputes Act. ''Settlement'' as defined therein means settlement arrived at in the course of conciliation proceedings and includes a

written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement

has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and

the Conciliation Officer. In the light of these provisions we do not think that Section 18(1) vests in the management and the union unfettered

freedom to settle the dispute as they please and clothes it with a binding effect on all workmen of the union. The settlement as to be in compliance

with the statutory provisions.

It was further observed by the Supreme Court that, (p 107)

Keeping in view its object and purpose, this rule does seem to demand full compliance in order to clothe the settlement with a binding character

on all workmen.

The Supreme Court thus held the settlement relied on by the Industrial Tribunal to be illegal, and remanded the matter for adjudication on merits.

The distinct facts of the case dealt with by the Supreme Court were : There was total non-compliance with rule 58(4) and that was conceded,

the dispute was not at the stage of forwarding the copies and over it, as in the present case, but long afterwards the settlement itself was pressed

forth to set at naught the reference made over the industrial dispute, and the question arose as to whether such a settlement, which never had

compliance with rule 58(4) could be an answer to the industrial dispute referred for adjudication. The facts of the present case, as already noted,

are different. The parties were at logger heads at the stage of forwarding the copies. There was not a total denial on the part of the bank to

forward the copies, and the matter rested there, and thereafter the settlement is being pressed into service. The bank merely wanted to postpone

forwarding of copies. In contrast, the employees were demanding the forwarding of the copies without delay. The employees in fact forwarded the

copies. So also the bank forwarded the copies later, after obtaining the approval of the Central Government. At the relevant point of time, the

dispute was not over the validity of the settlement, for total failure to comply with rule 58(4). The tug of war, the tussle and the combat between the

parties were only with reference to the forwarding of the copies as per rule 58(4). The dispute had not passed that stage at all. Viewed from the

angle of the facts of the present case, we have already opined that this sort of dispute could not be characterised as an industrial dispute. Hence,

the ratio of the pronouncement of the Supreme Court in Workmen of M/s. Delhi Cloth and General Mills Ltd. v. The Management of M/s. Delhi

Cloth and General Mills Ltd. (supra) cannot be usefully pressed into service to the facts of the present case.

Even otherwise, as rightly pointed out by Mr. B. R. Dolia, learned counsel for the employees, the later pronouncement of the Supreme Court

in The Workmen of M/s. Hindustan Lever Ltd. and others v. The Management of M/s. Hindustan Lever Ltd. (supra), being of a Larger Bench of

Three learned Judges, should be preferred, and followed by us, in preference to the earlier pronouncement of the Smaller Bench of two Learned

Judges in Workmen of M/s. Delhi Cloth and General Mills Ltd. v. The Management of M/s. Delhi Cloth and General Mills Ltd. (supra). In the

Workmen of M/s. Hindustan Lever Ltd. and others v. The Management of M/s. Hindustan Lever Ltd. (supra), sanctity was annexed to agreement

arrived at even by communications, and the endeavour on the part of the management to give a go-by to it was deprecated and Courts were called

upon to adopt dynamic interpretative process to strive to reduce the field of controversy and expand the area of agreement, by showing preference

for upholding agreements, sanctified by mutuality and consensus in larger public interest, namely to eschew industrial strife, confrontation and

consequent wastage.

So far as we are concerned, the foregoing discussion on the contention is only academic, since we have the conviction and expressed it so, that

a dispute over the very forwarding of the copies, when there is no total refusal to forward, cannot become an industrial dispute, as it does not

relate to either terms of employment or conditions of labour. Yet, we have, by our discussion, provided an answer even on this contention and that

is against the bank.

The learned single Judge has held that the strike was justified. This finding of the learned single Judge is not acceptable to the bank, and its

learned counsel Mr. M. R. Narayanaswamy would contend that the strike was absolutely unjustifiable. Though there is no fundamental right to

resort to strike, strike has come to be regarded as a powerful weapon of collective bargaining. The right to strike is the ultimate weapon in the

armoury of labour, and it has been recognised as a right inherent in every worker. A strike, unless it contravenes any statutory provision, would be

legal. But even a legal strike may become unjustified under certain circumstances, though an illegal strike can never become justified. We have

already found that the strike could not be held to be illegal as contravening Section 22(1)(d) of the Act. That is how the need to advert to the other

aspect of justifiability or otherwise of the strike arises. It has been recognised that in the case of a strike which is legal and justified, the workmen

would be entitled to full wages. The settlements were entered into even as early as 9th June, 1989. Communication after communication had

emanated from the side of the employees, demanding implementation of the terms of the settlements. The bank had been postponing it on the

ground that it could be done only after the approval of the Central Government. This attitude of the bank had no sanction of law. The bank had

also been postponing the forwarding of the copies, on the same ground. Should it be said that the employees were intolerant and impatient under

those circumstance ? The reasonableness or otherwise of their action in resorting to strike, must be tested, not in an abstract level, but delving deep

into the psychological situation prevailing. Who was unfair ? Was it the employee or was it the employer ? We cannot but give the answer against

the employer in the present case, judging the question from the standpoint view of fairness and reasonableness of the whole situation. Learned

counsel for the band would contend that the employees had already come to this Court on 6th October, 1989 by filing W.P. No. 13764 of 1989,

for implementation of the settlements and disbursement of the benefits thereunder, and while the interim direction for implementation asked for in

W.M.P. No. 19867 of 1989 had not been accorded by this Court, the employees behaved in an unjustified manner in resorting to the strike on the

very same issues. The employees coming to this Court, is one way of seeking redressal for the unfair situation faced by them. But, that cannot

militate against their resorting to the conventional weapon of strike in their armoury for getting reliefs. We endorse our support to the view of the

learned single Judge on this question.

Mr. M. R. Narayanaswami, learned counsel for the band, heavily relies on a pronouncement of two learned Judges of the Supreme Court in

Bank of India v. T. S. Kelawala and others 1990-II-LLJ-39 In that case, the union of the employees of a nationalised bank earlier had warned the

employees that they would be committing a breach of contract of service if they participated in the strike and they would not be entitled to draw

the salary for the full day if they did so. The employees struck work for the four-hours and resumed work for the rest of the day and the

nationalised bank did not prevent them from doing so. The nationalised bank, by a circular, directed the deduction of the full day''s salary of the

employees, who participated in the strike. The employees'' writ petition to quash the circular was allowed and the Letters Patent Appeal, preferred

by the nationalised bank was dismissed. The matter went to the Supreme Court. The two learned Judges viewed the question in the following

manner (p 44) :

The principal question involved in the case, according to us, is, notwithstanding the absence of a term in the contract of employment or of a

provision in the service rules or regulations, whether an employer is entitled to deduct wages for the period that the employees refuse to work

although the work is offered to them. The deliberate refusal to work may be the result of various actions on their part such as a sit-in or stay-in

strike at the workplace or a strike whether legal or illegal, or a go-slow tactics. The deliberate refusal to work further may be legal or illegal as

when the employees go on a legal or illegal strike. The legality of strike does not always exempt the employees from the deduction of their salaries

for the period of strike. It only saves them from a disciplinary action since a legal strike is recognised as a legitimate weapon in the hands of the

workers to redress their grievances. It appears to us that this confusion between the strike as a legitimate weapon in the hands of the workmen and

the liability of deduction off wages incurred on account of it, whether the strike is legal or illegal, has been responsible for the approach the High

Court has taken in the matter.

It was held that when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately. It was

further observed as follows :

However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does not

either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences.

During the Period of strike the contract of employment continues, but the workers without their labour. Consequently, they cannot expect to be

paid.

Learned counsel for the bank also relied on the following pronouncements for the proposition, when the employees have not done their work, they

cannot claim wages : (i) Arenson v. Arenson 1972-II-AII E.R. 949 and (ii) Cresswell and others v. Board of Inland Revenue 1985-I-LLJ-392 a

case of the Chancery Division.

Mr. B. R. Dolia, learned counsel for the employees, would request us to prefer the pronouncement of a Larger Bench of the Supreme Court

constituted of three learned Judges in Churakulam Tea Estate v. Its workmen 1969-II-LLJ-407 and the decisions which have followed the ratio

enunciated by the Larger Bench of the Supreme Court. In Churakulam Tea Estate v. Its workmen (supra) the question that arose was as follows

(p 414) :

The second question, that arose for consideration by the Tribunal, related to the claim for wages of the 27 factory workers, who went on strike on

30 November, 1961.

The answer given was as follows (p 415) :

Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further that the factory workers are entitled to

wages for that day. The finding of the Tribunal in this regard, is accepted.

In Crompton Graves Ltd. v. Workmen 1978-II-LLJ-80 the workmen went on strike against retrenchment resorted to by the management. The

question arouse with regard to the wages for the strike period. The Tribunal upheld the claim of the workmen for wages for a portion of the strike

period. The award of the Tribunal was put in issue before the Supreme Court. This is what has been held by two learned Judges of the Supreme

Court (p 82) :

It is well settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified A strike is legal

if it does not violate any provision of the statute. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or

unreasonable. Whether a particular strike is justified or not is a question of fact which has to be judged in the light of the facts and circumstances of

each case. It is also well-settled that the use of fore or violence or acts of sabotage resorted to by the workmen during a strike disentitled them to

wages for the strike period. In the instant case, on facts held the strike was neither unjustified nor illegal The Tribunal has, as a fact, found that the

workmen had not resorted to the use of force or violence. Appeal dismissed.

A learned single Judge of the High Court of Calcutta in Amalendu Gupta v. L. I. C. 1982-II-LLJ-332 finding that the strike was justifiable directed

the payment of salary for the workmen for the strike period. This pronouncement of the learned single judge has been upheld by a Bench of the

High Court of Calcutta in L. I. C. of India and others v. Amalendu Gupta and others 1988-II-LLJ-495 The learned Judges of the Bench of the

High Court of Calcutta, relied on the pronouncement of the three Judges Bench in Churakulam Tea Estate v. Its workmen (supra) and also the

pronouncement in Crompton Greaves Ltd. v. Workmen (supra). It is admitted by both the sides that the judgment of the Bench of the High Court

of Calcutta was taken on appeal before the Supreme Court in SLP No. 14804 of 1988 and the Supreme Court, except for a clarification with

regard to the period of interest, dismissed the SLP on 31st July, 1989. In a case where there are two pronouncements of the highest Court in the

land, suggesting or indicating contrary views, the rule of guidance for this court is to adopt the ruling of the decision rendered by a Larger Bench.

This is what has been observed in State of U. P. v. Ramachandra 1977-I-LLJ-200 :

It is also to be born in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches

of this Court, it cannot disregard or skirt the views expressed by the larger Benches. The proper course for a High Court in such a case, as

observed by this Court in Union of India v. K. S. Subramanian (Civil Appeal No. 212 of 1975, decided on 30th July, 1976) to which one of us

was a party, is to try to find out and follow the opinion expressed by the larger Benches of this Court in preference to those expressed by smaller

Benches of the Court which practice, hardened as it as into a rule of law, is followed by this court itself.

Guided by the above rule, we feel obliged to follow the ratio expressed in Churakulam Tea Estate v. Its Workmen (supra). Hence, when once it

has been found that the strike is neither illegal nor unjustified, the employees cannot be denied their wages. As per our above discussions, we are

not in a position to concur with the views of the learned single Judge and his ultimate decision. Accordingly, this writ appeal is allowed, the order of

the learned single Judge in W.P. No. 14664 of 1989 is set aside, and the writ petition shall stand allowed, as prayed for. No costs.