WP(C) 777/2001 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) The award dated 19.9.2000 passed by the learned Industrial Tribunal (’Tribunal’ for short), Silchar in reference Case No. 9 of 1996 is under challenge in the in stant writ petition thereby seeking a writ of certiorari for quashing the award, whereby and whereunder the learned Tribunal has held that the strike resorted t o by the workers was justified and hence directed the management to release the deducted wages for the strike period within one (1) month from the date of the a ward. 2. Two questions have been raised before this Court for adjudication. They are,- i) As to whether resorting to strike during the pendency of the conciliation pro ceeding is illegal in view of provision contained under Section 22(d) of the Ind ustrial Disputes Act, 1947 (for short ’the Act’), and ii) As to whether the payment of North Eastern Allowance (’NE Allowance’ for sho rt) is of such emergent nature, which would justify a strike even when the actio n of the Government on the report of the Assistant Labour Commissioner was pendi ng? 3. In view of the contentions raised, it would be relevant to examine the t erms of reference. Vide notification dated 19.08.96 the Governor of Assam in exe rcise of powers conferred by clause (c)(D) of Sub-section (1) of Section 10 of t he Act has referred the dispute to the Presiding Officer of the Industrial Tribu nal, Silchar for adjudication. The terms of reference is reproduced hereinbelow: a) Whether the workers of the Cachar Paper Mill, P.O. Panchgram, District-Hailak andi are eligible for wages for the period of strike resorted by them from 6 AM of 12.03.96 to 6 AM of 15.03.96? b) If not, what relief they are entitled to? 4. The first limb of reference relates as to whether the strike resorted to by the workmen were justified and the second limb relates to consequential reli ef. The above quoted reference was registered on 19.09.96 being numbered as Refe rence Case No. 9 of 1996. On receipt of the summons both the parties to the refe rence have submitted their respective written statements. 5. In the written statement submitted by the management of Hindustan Paper Corporation Ltd. (’management’ for short), it is contended that the management c orporation introduced NE Allowance for its officers who have All India Transfer Liability and also special Compensatory (remote locality) allowance to other emp loyees as per laid down slabs of controlling Ministry of Heavy Industries of Gov ernment of India. On being introduced, the above facilities to employees of the management Corporation, the workmen were demanding the said facilities to them. The management in their attempt to resolve the problem held discussion with the unions but when their all attempt failed, the management sought intervention of the Assistant Labour Commissioner-cum-Conciliation Officer vide communication da ted 12.10.95. In pursuance of the said communication dated 12.10.95, the Assista nt Labour Commissioner-cum-Conciliation Officer intervened in the matter fixing conciliation on 27.10.95. But during the pendency of the Conciliation Proceeding s, the unions threatened the management to resort to strike from 6 AM of 12.03.9 6 to 6 AM of 15.03.96 unless the aforesaid demands are fulfilled. The management having no other alternative informed the Assistant Labour Commissioner, Silchar regarding threatened strike, who vide communication dated 04.03.96 informed the unions that the report as required under Section 12(4) of the Act has been sent to the Government and therefore, requested the unions to withdraw the threatene d strike for the larger interest of the industry. The management also informed t he unions that their demands have been referred to the concerned Ministry for th eir appreciation. Moreover, the unions in the meantime during the wage settlemen t with the management had a threadbare discussion on the issue relating to NE al lowance whereby the unions had given undertaking in writing that for any content ious issue the same would be resolved by bipartite meeting between the managemen t and the unions and further agreed to send proposal having financial implicatio n to the Board for consideration. But, the unions during the pendency of concili ation, adjudication before the Government relating to the subject matter of stri ke and undertaking given in writing; resorted to strike from 6 AM of 12.03.96 to 6 AM of 15.03.96 and thus illegally putting the entire administration causing l oss to the mill and the sufferings and inconvenience to all. The management made all arrangement for smooth functioning of the mill during the strike period. Bu t the workmen did not attend their duties by resorting to strike which is illega l and hence, they are not entitled to wages for the illegal strike resorted to f rom 6 AM of 12.03.96 to 6 AM of 15.03.96. Therefore, the management prays to rej ect the issues by holding that the strike resorted to by the workmen is illegal and they are not entitled for any wages for the strike period. 6. The unions, four in number filed one consolidated written statement cont ending inter alia that the reference being Reference Case No. 9 of 1996 was made due to failure of the Conciliation Proceeding held on 27.10.95 and 06.11.95 by the Assistant Labour Commissioner-cum-Conciliation Officer, Silchar due to non-c ompliance of the directions by the management issued by the said officer vide co mmunication dated 12.10.95 and subsequent violation of the order issued on 25.03 .96 and therefore there is a reasonable and substantial cause of action for the reference. Moreover, the management had acknowledged the receipt of the unions’ protest letter dated 21.09.95 relating to NE allowances and consequent reply the reto dated 22.09.95 would show that the matter has been referred to the Corporat e Headquarter for their examination and on receipt of the reply further communic ation would follow. But, contrary to the aforesaid letter dated 22.09.95, the ma nagement issued a circular dated 22.09.95 stating that in compliance to the inst ruction received from the Government of India and subsequent clarification recei ved from Corporate Headquarter arrear on account of NE allowance at the rate of 10% of the basic pay subject to maximum of Rs.500/- has been credited to the res pective Bank account of the employees in the category of Executive and above and in respect of other employees who are eligible to special compensatory (remote locality) allowance at the rate of slab prescribed shall be payable in cash as p er programme notified in the circular. This act entails willful deviation from t he provision envisaged under clause 18 of the Certified Standing Order of the co mpany applicable to workmen and the terms of appointment in service. Moreover, a fter receipt of strike notice dated 11.10.95 from the unions, the management had requested the General Secretaries of the four unions to attend a meeting schedu led to be held on 11.10.95 at 3:30 PM to discuss the issue of NE allowance which yielded no result. Copies of the said strike notice were also issued to Assista nt Labour Commissioner-Cum-Conciliation Officer and others. The Assistant Labour Commissioner-Cum-Conciliation Officer intervened into the matter and notified f or conciliation over the dispute vide communication dated 12.10.95 and requested both the parties to maintain status quo ante as on 21.09.95. But the management did not pay any heed to the said communication issued by the Conciliation Offic er. On the contrary, the management issued the circular dated 22.09.95 by paying the NE allowance to the Executives and above but the payment of Supervisors and workmen were kept in abeyance. In compliance with the direction of the Concilia tion Officer, the unions deferred their decision of resorting to strike which wa s scheduled to be commenced with effect from 26.10.95 for 72 hours. On the other hand, pursuant to the notification of the Conciliation Officer, the management did not attend the conciliation proceeding on the fixed dates and ultimately the conciliation failed. Hence, the adamant and non-compromising attitude of the ma nagement compelled the Unions to resort to agitational programme and thus conseq uent upon the failure of the conciliation, the unions with reference to the earl ier notice dated 11.10.95 and deferred notice dated 25.10.95 had issued a furthe r strike notice on 26.02.96 for revised schedule of strike to be commenced from 6 AM of 12.3.96 to 6 AM of 15.3.96 which was resorted to by the act of the manag ement and the management is responsible for the strike and requested to hold tha t the strike is legal directing the management to release their deducted wages f or the strike period. 7. The parties to the dispute have submitted several documents. The unions examined Sri Manabendra Chakravorty, the General Secretary of Hindusthan Paper C orporation, Cachar Paper Project Union, whereas the management did not examine a single witness to prove that the strike resorted to by the workmen was illega l. Since the letter Ext ’A’ dated 4.3.96 issued by the Assistant Labour Commiss ioner, Cachar to the unions to suspend their proposed strike informing them that the report under Section 12(4) of the Act has been sent to the Government which letter the unions denied to have received. However, the management advanced the ir arguments on the law points referring certain decisions relating to strike an d its consequences. 8. The learned Tribunal on a threadbare discussion, considering the evidenc e led by the unions and the argument advanced by the parties has held that the s trike resorted by the unions was justified in absence of evidence of the managem ent relating to Ext-’A’ to prove that the aforesaid letter dated 4.3.96 was rece ived by the union members thereby directed to return the deducted wages for the strike period within one month from the date of the award and hence the instan t writ petition questioning the legality and validity of the award dated 19.9.2 000 passed in Reference Case No. 9 of 1996. 9. Heard Mrs. M Hazarika, learned Senior counsel assisted by Ms. A Ajitsari a, learned counsel appearing for the petitioner. Also heard Mr. G Soren, learned Govt. Advocate appearing for respondent No.1 and Mr. BC Das, learned Senior cou nsel assisted by Ms. S Roy, learned counsel appearing for the respondent Nos.2 t o 5, the unions. 10. Criticizing the award passed by the learned Tribunal, Ms. Hazarika, lear ned Senior counsel appearing for the management petitioner has referred to Sec tion 22(d) and Section 23 of the Act and would contend that the strike resorted to by the workmen violates the provisions of Section 22 and 23 of the Act and hence, award passed by the learned Tribunal requires interference under cert iorari jurisdiction. 11. The counsel has further contended that vide Ext-’A’ dated 4.3.96 the Con ciliation Officer, requested the unions to suspend/withdraw the proposed strike since the report under section 12(4) of the Act has been sent to the Government for appropriate decision in the matter and hence, strike resorted to by the unio ns is illegal and they are not entitled to get the wages for the strike period. In support of her contentions, learned counsel has placed reliance upon the foll owing decisions: 1) AIR 1960 SC 219 (India General Navigation and Railway Company Ltd. v. I R Wor kmen) 2) (1994) 5 SCC 572 (Syndicate Bank v. K. Umesh Nayak) 3) (1996) 11 SCC 319 (HMT Ltd. v. HMT Head Office Employees’ Assoc iation & Ors.) 4) (2003) 3 GLT 105 (Hindusthan Paper corporation Ltd. v. Presidin g Officer, Industrial Tribunal, Silchar and others) 12. Countering the attack of the learned counsel appearing for the managemen t, Mr. Das, learned Senior counsel appearing for the unions, respondent Nos.2 to 5 has referred to sections 12(6) and 23 of the Act and urged that there was no conciliation pending and the management having failed to prove Exhibit ’A’ date d 4.3.96 issued by the Conciliation Officer was ever served upon the unions, the learned Tribunal has rightly passed the award which do not require to be interf ered with in exercise of certiorari jurisdiction, more so, when there is no err or apparent on the face of the record. In support of his contentions, the counse l has referred the decision reported in (1978) 3 SCC 155 (Crompton Greaves Ltd. v. Its Workmen). 13. Considered the argument advanced. Perused the evidence on record along w ith the pleadings of the parties and the provisions of the Act referred to by th e learned counsel appearing for the parties. 14. To answer the first limb of the question as to whether the strike resort ed to by the workmen was justified, it would be appropriate to refer the relevan t provisions of the Act. Section 22 (d) of the Act provides that no person emplo yed in a public utility service shall go on strike in breach of contract during the pendency of any conciliation proceeding before a Conciliation Officer and se ven days after the conciliation of such proceedings. Section 23 of the Act deals with the general prohibition of strikes and lock-outs in breach of contract dur ing the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings. To answer the question it would be necessar y to summarize the brief facts pleaded and established. 15. Admittedly, the management has introduced NE Allowance and Special Compe nsatory (remote locality) Allowance having all India transfer liability and gran t of Special Compensatory Allowance to others not having the said liability. The unions raised an industrial dispute demanding NE allowance to all categories of employees and the management implemented the decision against which on 11.10.95 a notice of proposed 72 hours strike was served upon the management if they ref use to grant NE allowance to all category of employees, resulting in reference t o conciliation proceeding. On 12.10.95 the Assistant Labour Commissioner notifie d the date of conciliation scheduled to be held on 27.10.95 but the conciliation failed and consequent thereupon the unions on 26.02.96 issued notice of strike informing the management that they would resort to strike from 6 AM of 12.03.96 to 6 AM of 15.03.96. On 4.3.96, the Assistant Labour Commissioner informed the u nions that necessary reports after failure of conciliation proceedings on 6.11.9 5 on the same issue had already been submitted to the Government for making a re ference for adjudication by Labour Court/Tribunal and requested them not to reso rt to strike. 16. To get the benefit of Section 22(d) and Section 23 of the Act and conseq uently to hold the strike to be illegal, the management has to establish that th e letter dated 4.3.96 was served upon the unions. Record would reveal that durin g the adjudication before the learned Tribunal, no witness from the management s ide came forward to prove that the letter Ext A was served upon the unions; when the witness examined by the unions has categorically stated that he did not rec eive the letter alleged to have been issued by the Assistant Labour Commissioner and the said evidence could not be shaken in cross-examination by the managemen t. In view of the same, the burden of proof is thus shifted to the management, b ut the management did not come forward to prove that the letter Ext-A was actual ly served on the unions and therefore, the benefit of Section 22(d) and Section 23 of the act cannot be made available to the management as has been rightly h eld by the learned Tribunal and the said finding cannot be interfered with by th is Court while exercising power under writ jurisdiction. Therefore, this Court is not inclined to accept the argument advanced by the management. This Court th us hold that the strike was legal and consequently thereupon the workmen are ent itled to get the deducted wages back for three days from 12.03.96 to 15.03.96 an d accordingly the question raised in the first limb is answered in positive and against the management petitioner. 17. Now it would be apt to analyse the decisions cited by the learned counse l for the petitioner in support of her case. The case of India General Navigation (Supra) relates to dismissal of eight workm en and dismissal/suspension of 260 workers to which reference was made and adjud icated upon and therefore has no relevancy to the instant case. The case of the Syndicate Bank (supra) relates to strike. In order to ge t the wages for the strike period, the strike has both to be legal and justified . In other words, if the strike is only legal but not justified or if the strike is illegal, though justified, the workers are not entitled to the wages for the said period, the employer is entitled to deduct wages for the period of such st rike and there is no ambiguity on the decision as rendered by the Apex Court. In HMT Ltd. (Supra), the Apex Court has held that where the National Industrial Tribunal found on facts that the strike was illegal for contravening section 22( 1)(d) or 23 (a) or (c) of the Act even if such strike was justified, no wages f or the strike period could have been awarded. There is no dispute over the deci sion rendered by the Apex Court. The case of Hindustan Paper Corporation Ltd. (supra) relates to NE Allow ances granted to those employees of Hindustan Paper Corporation who have all Ind ia transfer liability and the employees who do not have all India transfer liabi lity are not entitled to get the benefit of NE Allowance as held by the court. H owever, in Hindustan Paper Corporation (supra), the court has not dealt with the matter regarding legality/illegality of the strike resorted to by the workmen a nd hence, the decision would not be applicable. 18. From the aforesaid discussion and the decisions relied upon by the learn ed counsel appearing for the parties, the award passed by the learned Tribunal h olding the strike was legal and consequent thereupon, the workmen are entitled t o get back the wages deducted for three days for the strike period, there being no error apparent on the face of the record in arriving at the aforesaid conclus ion and the question being finding of fact, this Court is not inclined to interf ere with the award dated 19.9.2000 passed in reference case No.9 of 1996 by the learned Tribunal, Silchar, Cachar. 19. In the result, the writ petition is found to be devoid of any merit whic h is accordingly dismissed. Parties are left to bear their own costs. Stay order , if any, passed earlier stands vacated. 20. Registry is directed to send down the records immediately.