Appeal No 3471959
Appeal by special leave from the Award dated October 171957 of the Industrial Tribunal No 11 Ernakulam in Industrial Dispute No 63 of 1956
section Govind Swaminadhan and P Ram Reddy for the appellant
Jacob A Chakramakal and K Sundararajan for respondent No1 K R Choudhry for respondent No 2 1960
April 4
The Judgment of the Court was delivered by 452 DAS GUPTA J
On August 9 1955 the Union of the workmen of the Chandramalai Estate submitted to the Manager of the Estate a memorandum containing fifteen demands
Though the management agreed to fulfil some of the demands the principal demands remained unsatisfied
On August 29 1955 the Labour Officer Trichur who had in the meantime been apprised of the position by both the management of the Estate as well as the Labour Union advised mutual negotiations between the representatives of the management and workers
Ultimately the matter was recommended by the Labour Officer to the Conciliation Officer Trichur for conciliation
The Conciliation Officer s efforts proved in vain
The last meeting for Conciliation appears to have been held on November 30 1955
On the following day the Union gave a strike notice and the workmen went on a strike with effect from December 9 1955
The strike ended on January 5 1956
Prior to this on January 5 the Government had referred the dispute as regards five of the demands for adjudication to the Industrial Tribunal Trivandrum
Thereafter by an order dated June 11 1956 the dispute was withdrawn from the Trivandrum Tribunal and referred to the Industrial Tribunal Ernakulam
By its award dated October 17 1957 the Tribunal granted the workmen s demands on all these issues
The present appeal has been preferred by the management of the Chandramalai Estate against the Tribunal s award on three of these issues
These three issues are stated in the reference thus  1
Was the price realised by the management for the rice sold to the workers after decontrol excessive and if so are the workers entitled to get refund of the excessive value so collected 2
Are the workers entitled to get cumbly allowance with retrospective effect from the date it was stopped and what should be the rate of such allowance 3
Are the workers entitled to get wages for the period of the strike  On the first issue the workmen s case was that after the control on rice was lifted by the Travancore Cochin Government in April 1954 the management 453 which continued to sell rice to the workmen charged at the excessive rate of 12 annas per measure for rice bought in excess of a quota for 1 12 measure per head
This according to the workmen was improper and unjustified and they claimed refund of the excess which they have been made to pay
The management s case was that the workmen were not bound to buy rice from the Estate s management and secondly that only the actual cost price and not any excess had been charged
The tribunal held on a consideration of oral and documentary evidence that the management had charged more than the cost price and held that they were bound to refund the same
The second issue was in respect of a claim for cumbly allowance
Chandramalai Tea Estate is situated at a high altitude
It is not disputed that it had been customary for the Estates in this region to pay blanket allowance to workmen to enable them to furnish themselves with blankets to meet the rigours of the weather and that it had really become a part of the terms and conditions of service
But in spite of it the management of this Estate stopped payment of the allowance from 1949 onwards and resumed payment only in 1954
The management s defence was that any dispute not having been raised about this till August 9 1955 there was no reason for raising it at this late stage
The Tribunal rejected this contention and awarded cumbly allowance of Rs 39 per workman made up of Rs 7 per year for the years 1949 1950 and 1951 and Rs 9 per year for the years 1952 and 1953
On the third issue while the workmen pleaded that the strike was justified the management contended that it was illegal and unjustified
The Tribunal held that both parties were to blame for the strike and ordered the management to pay workers 50 of their total emoluments for the strike period
On the question of excess price of rice having been collected the appellant s contention before us is limited to the question of fact whether the Tribunal was right in its conclusion that more than cost price was realised
The Tribunal has based its conclusion as regards the price realised by the management on entries made in 58 454 the management s own documents
As regards what such rice cost the management it held that for the months of April July and August and September the price was shown by the management s documents while for May and June these documents did not disclose the price
For these two months the Tribunal held the market price of rice as proved by the workers  witness No 6 to have been the price at which the Estate s management procured their rice
We are unable to see anything that would justify us in interfering with these conclusions of facts
Indeed the documents on which the Tribunal has based its conclusions were not even made part of the Paper Book so that even if we had wanted to consider this question ourselves it would be impossible for us to do so
We are satisfied that the Tribunal was right in its conclusions as regards the cost price of rice to the manage ment and the price actually realised by the management from workmen
The management s case that the workmen were charged only the cost price of rice has rightly been rejected by the Tribunal
The fact that workmen were not compelled to purchase rice from the management is hardly material the management had opened the shop to help the workmen and if it is found that it charged excess rates in fairness the workmen must be reimbursed
The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefore be successfully challenged
On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late
The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmen s case that payment of a proper cumbly allowance had become a part of their conditions of service
We do not think that the mere fact that the workmen did not raise any dispute on the management s refusal to implement this condition of service till August 9 1955 would be a sufficient reason to refuse them such payment
The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954
They 455 cannot now be heard to say that they should not be asked to pay it merely because the years have already gone by
It is reasonable to think that even though the management did not pay the allowance the workmen had to provide blankets for themselves at their own expense
The Tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953
The correctness of the rates awarded by the Tribunal is not challenged before us
The Tribunal s award on this issue also is therefore maintained
This brings us to the question whether the tribunal was right in awarding 50 of emoluments to the work
men for the strike period
It is clear that on November 30 1955 the Union knew that conciliation attempts had failed
The next step would be a report by the Conciliation Officer of such failure to the Government and it would have been proper and reasonable for the Union to address the Government at the same time and request that a reference should be made to the Industrial Tribunal
The Union however did not choose to wait and after giving notice on December 1 1955 to the management that it had decided to strike from December 9 1955 actually started the strike from that day
It has been urged on behalf of the appellant that there was nothing in the nature of the demands to justify such hasty action and in fairness the Union should have taken the normal and reasonable course provided by law by asking the Government to make a reference under the Industrial Disputes Act before it decided to strike
The main demands of the Union were about the cumbly allowance and the price of rice
As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9 1955
The grievance for collection of excess price of rice was more recent but even so it was not of such an urgent nature that the interests of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to
After all it is not the employer only who suffers if production is stopped by strikes
While on the one 456 hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged
It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects
There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference
In such cases strike even before such a request has been made may well be justified
The present is not however one of such cases
In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference
They did not wait at all
The conciliation efforts failed on November 30 1955 and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December 1955 and on the 9th December 1955 the workmen actually struck work
The Government appear to have acted quickly and referred the dispute on January 3 1956
It was after this that the strike was called off
We are unable to see how the strike in such circumstances could be held to be justified
The Tribunal itself appears to have been in two minds on the question
Its conclusion appears to be that the strike though not fully justified was half justified and half unjustified we find it difficult to appreciate this curious concept of half justification
In any case the circumstances of the present case do not support the conclusion that the strike was justified at all
We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified
The error is so serious that we are bound in the interests of justice to set aside the decision
There is in our view no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period
457 We therefore allow the appeal in part and set aside the award in so far as it directed the payment of 50 of the total emoluments for the strike period but maintain the rest of the award
There will be no order as to costs
Appeal allowed


Summary:
The respondent held a trade and import licence for foreign liquor as well as a vendor s licence under the Bombay Abkari 51 398 Act
It kept liquor in a bonded warehouse
On April 2 1948 the appellant asked the respondent to remove the liquor from the bonded warehouse after paying the necessary excise duty
The respondent paid the duty got the transport permits and took over the liquor some of which it sold
On December 16 1948 the appellant issued a notification doubling the duty on foreign liquor and called upon the respondent to pay the additional duty on the liquor which was still lying in its godown
The respondent contended that the imposition of additional duty on the stock on which duty had already been paid at the time of its issue from the bonded warehouse was illegal
The appellants case was that the respondent was bound to pay the duty prevailing on the transport of liquor at the time of transporting the same from its premises to another place within the State of Bombay Held that the imposition of the additional excise duty was illegal
Once the duty had been paid the liquor could be transported free from any further imposition except where it was transported to a region where the duty was different from the region where the duty was paid
There was no power in the State Government to impose duty at every movement during the course of the trade
Though there was power in the legislature to levy duty at every movement of liquor it had not exercised that power nor had it delegated such power to the State Government