Appeal No 323 of 1955
Appeal from the judgment and order dated July 2 1953 of the Bombay High Court in Special Civil Application No 159 of 1953
R J Kolah and A C Dave for the appellant
H R Gokhale K R Chaudhury and M R Rangaswamy for respondent No 2 1956
October 31
The Judgment of the Court was delivered by GOVINDA MENON J
On July 20 1954 the High Court of Judicature at Bombay granted a certificate of fitness under article 1331 c of the Constitution 940 that the judgment of that court dated July 2 1953 passed in Special Civil Application No 159 of 1953 was a fit one for appeal to the Supreme Court as it involved a substantial question of law and it is in pursuance of such certification that the above appeal is now before this court
A brief resume of the facts and circumstances which led to the application for a writ of certiorari in the High Court becomes necessary for a correct appreciation of the question of law involved and may therefore be shortly stated
The appellant which may hereafter for the purpose of convenience be called The Mill is a limited company owning and possessing a Cotton Textile Spinning and Weaving Mill situated in Poona employing a large number of workmen who have a union of theirs
The first respondent is a workman employed by the Mill and the second respondent is the Poona Girni Kamagar Union of which the first respondent is a member
Respondents 3 to 5 were formally added as parties in the first in stance but their names were struck off as unnecessary at the time of the hearing
The appellant was running 580 looms for working which one weaver had been allotted at the rate of two looms and when things were in that state on August 29 1951 the Management issued a notice to the effect that from September 1 1951 it was desired to carry on an experiment of four looms to a weaver for a period of 2 months on 16 looms
If at the end of that period or before the expiry of the same it was found that the working was successful the Management would introduce the scheme after giving the notice of change required under the Act
The object of this notice was ostensibly to introduce rationalization or rather efficiency system of work if and when the suggested experiment proved successful
As a result of this notice on September 4 1951 the Secretary of the Union wrote to the Manager of the appellant Mill intimating that under the Bombay Industrial Relations Act the Management could not legally introduce any change in the existing system of working without first giving notice of the change 941 in the prescribed form to the representatives of the Union and workers and without going through the other procedure prescribed by the Act and the Management were further informed that if they insisted in carrying on the change illegally the workmen would be free to move the proper courts
The notice also stated that the introduction of the new system would affect the workers  wages and cause great hardship and that if anything untoward happened the blame would be wholly on the management as it would be impossible for the Union to control the workers in the matter
Four workers volunteered to work the experiment and started working accordingly on the 16 looms on September 6 1951 whereupon the other workmen raised an objection and the four loyal workmen were prevented from continuing with the experimental work
But the Management did not withdraw the notice and none except the 4 was required by the Management to take part in the experiment
The second shift among the workmen also refused to work with the result that there was a complete strike in the Mills between the 6th and the 26th of September 1951
On September 10 1951 the appellant filed an application under sections 78 and 97 of the Bombay Industrial Relations Act 1946 Bom
XI of 1947 praying that the strike resorted to by the weavers working on both the shifts commencing on September 6 1951 and continuing till the presentation of the application be declared illegal being in contravention of the provisions of the said Act
On September 16 1951 the Vice President of the Mill Mazdoor Sabha filed a written statement in answer to the above com plaint stating that the workers did not strike work in contravention of the Bombay Industrial Relations Act and that the weavers never refused to do their proper and usual work but refused only to do the illegal work insisted on them by the employers in other words they were agreeable to have two looms per weaver and not to work the attempted experiment
Within three days of the filing of the above written 942 statement two of the workers filed an application under sections 78 and 98 of the Bombay Industrial Relations Act before the same Labour Court against the Management praying for a declaration that the action of the Management had resulted in an illegal lockout in contravention of the Act and therefore the Management should be ordered to withdraw the said illegal change
The appellant filed a written statement countering the allegations contained in the application for the declaration of an illegal lockout and stated that their action was not in contravention of the Bombay Industrial Relations Act as it did not constitute an illegal change
The Labour Court at Bombay heard both the applications together and by a combined order dated September 26 1951 held that since the Management had not compelled any one to accept any work their action could not be considered an illegal lockout
At the same time it held that the workers did not create a situation amounting to an illegal strike
The result of these findings was the negation of the grant of the prayers contained in the respective applications but in addition the court declared that the action of the Management was an illegal change and therefore the notice whereby the experiment was attempted to be tried should be withdrawn
The workers were content with the outcome of their application but the Management having been aggrieved by the declaration that their action amounted to an illegal change  filed an appeal before the Labour Appellate Tribunal at Bombay Appeal No 293 of 1951 upon which the learned Judges of the Labour Appellate Tribunal took the view that the strike by the workmen was illegal
They also concluded that there was no lockout on the part of the Management
That being the case the order of the Labour Court declaring that there was an illegal change was set aside with the declaration that the strike in question was illegal with the necessary consequences
I In order to get the said order of the Labour Appellate Tribunal quashed an application for a writ 943 of certiorari under articles 226 and 227 of the Constitution was filed by the two of the workers before the High Court of Bombay where Chagla CJ and Dixit J took the view that since the decision of the Appellate Tribunal was erroneous the same should be quashed with the result that the decision of the Labour Court was upheld
It is this judgment that is under appeal before us as a result of the certificate granted by the High Court of Bombay
A reading of the relevant portions of the statute is necessary to find out whether the order appealed against is justified or not
The Bombay Industrial Relations Act 1946 was enacted to regulate the relations of employer and employees to make provisions for the settlement of industrial disputes and to provide for certain other purposes
This statute repealed the Bombay Trade Disputes Conciliation Act 1934 and the Bombay Industrial Disputes Act 1938
Section 38 defines change as meaning an alteration in an industrial matter and sub section
15 contains a definition of illegal change  as meaning an illegal change within the meaning of sub sections
4  5 of section 46 which are in the following terms 1        2         3         4Any change made in contravention of the provisions of sub sections 1 2 and 3 shall be illegal
5Failure to carry out the terms of any settlement award registered agreement or effective order or decision of a Wage Board a Labour Court or the Industrial Court affecting industrial matters shall be deemed to be an illegal change
Section 42 which speaks of change may also be quoted so far as it is relevant for our purpose I Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees
He shall send a copy of such notice to the Chief Conciliator the Conciliator for the industry concerned for the 944 local area the Registrar the Labour Officer and such other person as may be prescribed He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as way be directed by the Chief Conciliator in any particular case
Industrial matter  has also been defined in the Act in section 318 in the following words Industrial matter  means any matter relating to employment work wages hours of work privileges rights or duties of employers or employees or the mode terms and conditions of employment and includes aall matters pertaining to the relationship between employers and employees or to the dismissal or non employment of any person  b all matters pertaining to the demarcation of functions of any employees or classes of employees c all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission settlement or award made under this Act dall questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole
Schedule II para 4 mentions rationalization or other efficiency system of work and therefore when any such rationalization is introduced it is obligatory upon the employer to give notice of such an intention in the prescribed form to the representatives of the employees
We may also refer to section 335 A defining stoppage  in the following terms  Stoppage  means a total or partial cessation of work by the employee in an industry acting in combination or a concerted refusal or a refusal under a common understanding of employees to continue to work or to accept work whether such cessation or refusal is or is not in consequence of an industrial dispute
945 Sub section 36 defines strike  as follows  Strike  means a total or partial cessation of work by the employees in an industry acting in combination or a concerted refusal or a refusal under a common understanding of employees to continue to work or to accept work where such cessation or refusal is in consequence of an industrial dispute
Chapter XIV of the statute concerns itself with illegal strikes and lockouts of which section 97 deals with illegal strikes whereas section 98 deals with an illegal lockout
According to section 971c a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or made an illegal change
In considering whether the strike in question was illegal
the learned Judges of the High Court have expressed the opinion that there is a common law right for an employee to stop work and that it is only by statutory prohibition that certain strikes have been made illegal in the interest of labour relations
In the present case since there had been no illegal change effected by the employer the High Court took the view that on the very finding of the Appellate Tribunal that the change was a legal change the strike in question did not come within the ambit of section 97
Learned counsel for the appellant has pressed two arguments before us with regard to the construction of section 97 1 e of the Bombay Industrial Relations Act 1946
His first argument is that the High Court was in error when it held that there was any such right as a common law right of an employee to go on strike and section 97 constituted an inroad on that right
Learned counsel has submitted that under section 97 f c a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change if a strike is illegal when it is com menced or continued only for the reason that the employer has made an illegal change a fortiori it must be illegal when it is commenced or continued for a legal change
The contention of learned counsel is 128 946 that by necessary implication cl
c condemns a strike which is commenced or continued for a change which is not illegal
The second argument of learned counsel is that the true scope and effect of cl
c is this the word only  occurring in the clause goes with the word reason  and if the strike is commenced or continued for the only reason that the employer has made an illegal change it shall be illegal
The test is not whether there was a legal or illegal change in fact but what was the reason for which the employees went on strike and if the employees
commenced or continued a strike only for the reason that the employer had made an illegal change the strike would be illegal within the express terms of the clause
In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not because we are I clearly of the opinion that the second argument with regard to the construction of section 97 1 c is correct and should prevail
In this case the workmen themselves came to court with the plea that the action of the employer amounted to an illegal change
In their application to the Labour Court they said That for the above mentioned reasons it is prayed that this Honourable Court be pleased to declare the said lockout by the opponent Mills as illegal being in con travention of the Bombay Industrial Relations Act and the opponent be ordered to withdraw the said illegal change
It is obvious therefore that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer was an illegal change
The action of the workmen therefore came within the express terms of section 97 1 c of the Act
The learned Chief Justice did not consider this aspect of the case and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in s971c
In our viewthe true test was to find out the reason for which the strike was commenced or continued and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the work 947 men had the right to go on strike as a means of collective bargaining against a change which they did not like
Mr Gokhale appearing for the workmen has taken us through the different provisions of the Bombay Industrial Relations Act 1946 and has contended that the workmen have the right to go on strike as a means of collective bargaining against any measure adopted by the employer which the workmen may consider to be detrimental to their interests provided the strike does not come within the prohibited ambit of section 97
Even assuming that Mr Gokhale is right in his contention it is clear to us that if the workmen commence or continue a strike for the only reason that the employer has made an illegal change they come within the express terms of section 97 1 c
It is immaterial whether the change is subsequently found by the Labour Court to be a legal change
It is worthy of note that there is a separate provision for imposing a penalty on an employer who makes an illegal change
The relevant consideration however with regard to section 97 1 c is the reason for which the strike is commenced or continued
That reason in this particular case is clear enough
The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change
That being the position the strike was illegal within the express terms of section 971c of the Act
We are therefore of the opinion that on a proper interpretation of section 971 c of the Act the strike which was commenced and continued from September 6 to September 26 1951 was clearly illegal
The appeal is accordingly allowed and the order of the High Court dated July 2 1953 is set aside
The result therefore is that the order of the Labour Appellate Court dated September 4 1952 stands with the declaration that the strike in question was illegal with its usual consequences
In this case the appellant had agreed while asking for a certificate from the Bombay High Court for leave to appeal to the Supreme Court to pay the taxed costs of the respondents in one set
Learned 948 counsel for the appellant himself has drawn our attention to the agreement
In view of that it is not necessary for us to decide in this case whether it was open to the Bombay High Court to pass any order about costs in this Court while granting a certificate of fitness under article 1331 c of the Constitution and we direct that the appellant should pay to the respondents the costs of this appeal in one set and bear its own costs thereof
Appeal allowed


Summary:
By section 971c of the Bombay Industrial Relations Act 1946 A strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change
The management of the appellant Mill desiring to make a change in the existing system of working started making an experiment by asking a few workmen who had volunteered to work at the rate of four looms to a weaver for a period of two months
The other workers objected that this was an illegal change on the ground that the management could not legally introduce any change without first going through the procedure prescribed by the Act and went on strike
The question was whether the strike was illegal
Held that as the workmen had gone on strike only for the reason that the change or experiment made by the appellant was an illegal change their action came within the express terms of B 971c of the Act and the strike was illegal