IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17450 of 2011 and M.P.No.1 of 2011 Bharat Petroleum Corporation Ltd., rep by its Chief Manager-HRS, Mr.P.K.Mallick, 1, Ranganathan Gardens Anna Nagar (West), Chennai-600 040. .. Petitioner Vs. 1.Petroleum Employees Union, rep by its General Secretary Guruswamy Buildings, 6,Kachaleeswarar Street, Chennai-600 001. 2.Petroleum Workers Union, rep by its General Secretary, 35,Vaidyanathan Street, Tondiarpet, Chennai-600 081. 3.Petroleum Employees Association, rep by its General Secretary, C/o.BPCL, Irumpanam, Kochi, Kerala-682 309. 4.The Regional Labour Commissioner (Central) Office of the Regional Labour Commissioner (Central), Shastri Bhavan, Haddows Road, Chennai-600 006. 5.The Chief Labour Commissioner (Central) Shram Shakti Bhavan, Rafi Marg, New Delhi-110 001. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the strike notice dated 6.7.2011 issued by the respondents 1 and 2 and the strike notice dated 16.7.2011 issued by respondent 3 is illegal and violative of section 22 and 23 of the Industrial Disputes Act, 1947. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.Giri, SC for M/s.King and Partridge - - - - ORDER The petitioner being the Bharat Petroleum Corporation Limited, a Public Sector Unit (PSU) is once again before this court for a similar relief, i.e., seeking for a declaration declaring that the strike notice dated 06.07.2011 issued by the respondents 1 and 2 trade unions and the strike notice dated 16.7.2011 issued by the third respondent trade union, i.e., Petroleum Employees Association having its base at Kochi, are illegal and violative of sections 22 and 23 of the Industrial Disputes Act, 1947 and to pass such other order as it may deem it fit in the circumstances of the case. 2.It is the case of the petitioner Corporation that it is engaged in the business of marketing and distribution of Petroleum products. Its regional office at Chennai is having over all control over the business in the Southern region. They are also having installations and LPG bottling plants, aviation stations, depots, offices throughout the Country. It supplies LPG cylinders, kerosene, petrol and diesel to industries and domestic consumers in the State. It also supplies Aviation turbine fuel to the Air Crafts operated by various Airlines including Indian Airlines Corporation. The petitioner company is also the controlled industry as per the Industries (Development and Regulation) Act, 1951. As a PSU, it has public duty to maintain an uninterrupted supply of petroleum products. 3.It is further stated that they have been entering into Long Term Settlements (LTS) with the recognised trade unions from time to time. One such settlement it was entered into for a period from 1.6.1993 to 31.5.1998 expired on 31.5.1998. Thereafter, the trade unions had terminated the settlement and had conducted a fresh negotiation. A settlement under Section 12(3) read with Section 18 (3) of the Industrial Disputes Act, 1947 (for short ID Act) was entered into on 19.8.2001. The respondents 1 to 3 had also signed the said settlement on 19.8.2001 at New Delhi. The said settlement was valid upto 31.5.2008. It shall continue to be binding until a fresh settlement was arrived at between the parties. The petitioner Corporation had brought out a policy by which the eligibility criteria for unions was revised so as to be invited for the All India meetings and negotiations. The petitioner had fixed a minimum membership strength of 25% of Regional strength as the criteria for being invited to participate in the All India meetings of matters relating to issues culminating in the long term settlements as well as matters of significance. The third respondent Union had failed to meet the eligibility criteria and was not invited for any meeting on the present parleys for entering into long term settlements. The first and second respondents had participated in the meeting. https://hcservices.ecourts.gov.in/hcservices/ 4.It was further stated that in the last meeting on 21.5.2010, respondents 1 and 2 along with union from other unions had walked out of the meeting. On 29.10.2010, when a meeting was called at Indore, the trade unions had failed to consider the offer made by the petitioner. A further meeting was held at Bhubaneshawar on 02.12.2010 and once again respondents 1 and 2 had boycotted the meeting even though a revised and improved offer was made by the management. It only proves that the unions are not ready for any negotiations with good faith. It was also stated that the first two meetings were held at Pune and Mumbai on 20th and 21st July, 2009 and 20th and 21st August, 2009 respectively. A total of five unions from Eastern Region, Northern Region and Southern Region had attended the meeting. The two unions from the Western Region did not attend the meeting on the issue of representation. The third meeting was held at Kolkatta on 22nd and 23rd December, 2009. The said meeting was presided by the Chief Labour Commissioner (Central), Government of India, Ministry of Labour. After a lot of discussions, the representation issue as well as number of Observers to be allotted to the Unions was finally settled. The fourth meeting was held at Chennai on 25th and 26th February, 2010, where the financial status of the petitioner company and the other business issues were discussed. The fifth meeting was held at New Delhi on 20th and 21st May, 2010 where the other issues were discussed. It is thereafter, the unions chose to walk out the meetings. 5.It was further stated that the unions had also placed counter demands including reduction of period of long term settlement. Even though it was informed that the unions should spell out their areas of agreement and should come for further negotiations, they were not ready to do so. Even while negotiations were still pending, the unions had drawn up fresh agitation programmes culminating in an one day strike to be observed on 3.8.2011. Preceding the strike, during the second week of July, 2011, they were wearing black badge containing demands. In the third week of July, they had observed slogan shouting. In the fourth week of July, 2011, they have proposed to adopt "work to rule". They have also proposed to observe token fast at all locations on 29.7.2011 and to do slogan shouting on 1st and 2nd of August, 2011 in front of all the offices. The strike notice was issued to the management on 6.7.2011 for one day strike on 3.8.2011 for immediate settlement of long term wages and removal of concept of notional maxima. The third respondent union is not a party to the bargaining process, but it had also given a strike notice on 16.7.2011 proposing to synchronize their strike action with other trade unions on 3.8.2011. In the meanwhile, the petitioner corporation had invited respondents 1 and 2 vide a letter dated 18.7.2011 for a negotiation meeting towards signing the long term settlement at Varanasi on 9th and 10th August, 2011. While the petitioner was reasonable and showing all its endeavour to arrive at a peaceful settlement, the trade unions are on an agitational path and had given a strike call on 3.8.2011. The strike call is in https://hcservices.ecourts.gov.in/hcservices/ violation of Section 22 of the I.D. Act. The respondents 1 to 3 are having statutory duties in not resorting to any strike which is illegal and violative of Sections 22 and 23 of the ID Act. If the strike is allowed to proceed, it will affect the industries, the public and also the whole economy. 6.It was also stated that the petitioners have also moved this court with a civil suit in C.S.No.484 of 2011. This Court on 14.7.2011 had granted an ad interim injunction against respondents 1 and 2. Despite the injunction, respondents 1 and 2 have violated the order of injunction. Therefore, the petitioner has filed the writ petition for a declaration. Pending the declaration, an ad interim injunction restraining respondents 1 to 3 from resorting to strike on 3.8.2011 is asked for. 7.Heard the arguments of Mr.V.Giri, learned Senior Counsel leading M/s.King and Partridge. 8.Before dealing with the submissions made by the learned Senior Counsel, it must be noted that as against respondents 1 and 2, the petitioners have already moved the original side with a civil suit which fact is admitted in paragraph 30 of the affidavit. Therefore, for the very same reason, they cannot file the writ petition before this court with similar contentions. In effect, they cannot be allowed to have two forums for the same relief. It is for them to work out their right in the civil suit. If respondents 1 and 2 are excluded from the writ petition, then the real relief is only against the third respondent which is admittedly a trade union functioning in the State of Kerala having its headquarters at Kochi. Therefore as against them, this court has no territorial jurisdiction to issue any writ. It is not clear as to why the petitioner should rope in third respondent when they are not within the territorial jurisdiction of this court conferred under Article 226(2) of the Constitution. The writ petition is liable to be dismissed solely on this ground. 9.However, Mr.V.Giri, learned Senior Counsel contended that since the petitioner Public Sector Unit is a "public utility service" within the meaning of Section 2(1)(n) of the ID Act and the strike notices given by respondents 1 to 3 are violative of Sections 22 and 23 of the ID Act, the writ petition is maintainable. As noted already, the petitioner corporation has been filing similar writ petitions time and again. Whenever any strike notice is issued by any one of the trade union for any reason whatsoever, the petitioner had moved the High Courts at Mumbai, New Delhi, Kochi and this court also. The prayer made for each occasion was for such declaration to declare the strike notice as illegal and violative of provisions of the ID Act. In this context, it is necessary to refer to an earlier judgment of this court in Bharath Petroleum Corporation Ltd. Vs. Petroleum Employees Union reported in (2007) 3 MLJ 214, wherein similar relief was declined by this court. https://hcservices.ecourts.gov.in/hcservices/ 10.But one thing is very clear from the above narrations that a Public Sector Organisation like the petitioner, which is owned by the Central Government, has been resorting to similar writ petitions all over the country right from the year 2000 as seen from the order of the Bombay High Court and 2003 and 2006 as seen from the orders of the Division Bench of this Court and Kerala High Court respectively and from the order of the Delhi High Court as referred to in the Division Bench order and the petitioner Management has been moving the various High Courts every time when there is a notice of strike issued by their Trade Unions and the long arm of this Court had come to their rescue. It is a very unfortunate state of affairs. When sweeping powers are available to them under the provisions of law as to why they should seek the help of the Court to come to their rescue by issuance of a writ of extra ordinary nature that too, against the private parties. 11.At the outset, it must be stated that the issuance of prerogative writs, that too, against private persons, endowed with any statutory or public duty can only be in a rarest of the rare cases and the Courts have always held that it is only discretionary in nature. The conduct of the writ petitioner in moving Courts at repeated intervals all over India by frittering away public funds with such a litigation is highly unwarranted and should be encouraged. Therefore, this Court heard arguments both on the maintainability as well as the desirability of entertaining the writ petitions at repeated intervals. 12.The Standing Orders of the writ petitioner establishment contains various list of misconducts. Further, the Standing Order 30(b) refers to the provisions of the Payment of Wages Act, 1936 with reference to imposing fine. It must be noted that none of the employees of the petitioner Corporation will be covered by the Payment of Wages Act as it is applicable only for employees drawing salary not exceeding Rs.1600/- per month. Standing Order 29.1.27 reads as follows: "Going on and/or participating in any illegal strike or stay in or sit down strike, or abetting, inciting, instigating or acting in furtherance thereof." 13.Therefore, if any employee violates the provisions of the Standing orders, disciplinary action can be resorted to and the management must first enforce its powers against an erring employee. When it becomes a futile exercise, then they can resort to the provisions of the I.D. Act by launching prosecution. Only when all these exercises are undertaken by them and if there was no desired result, they can think of moving this Courts as a last resort. 14.In this context, it may be necessary to refer to the penal provisions found under the I.D. Act. The fact remains that the https://hcservices.ecourts.gov.in/hcservices/ petitioner Corporation has been declared "Public Utility Service" within the meaning of Section 2(1)(n) of the I.D. Act and the I.D. Act requires giving of a strike notice by workmen. For going on strike, when a dispute is pending before the Labour Court, there is prohibition under Section 23(b) of the I.D. Act. Any contravention of the same is also punishable under Sections 26 and 27 of the I.D. Act and they are reproduced below:- "26.Penalty for illegal strikes and lock-outs.- (1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to fifty rupees, or with both (2) Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both." 27.Penalty for instigation, etc. -- Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock- out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 15.Apart from that, Schedule V lists out various “Unfair Labour Practices” and Part II of the said Schedule deals with the Unfair Labour Practices that may be committed by workmen. Item No.1 of Part II of Schedule V reads as follows: "1.To advise or actively support or instigate any strike deemed to be illegal under this Act." 16.Indulging in Unfair Labour Practices has also been prohibited under the provisions of the I.D. Act and Section 25-T prohibits the commission of Unfair Labour Practice and Section 25~U prescribes the penalty for violation of Unfair Labour Practice. These two provisions are extracted below: "25~T. Prohibition of unfair labour practice.- No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice. 25~U. Penalty for committing unfair labour practices.- Any person who commits any unfair labour practice shall be punishable with imprisonment for a https://hcservices.ecourts.gov.in/hcservices/ term which may extend to six months or with fine which may extend to one thousand rupees or with both." Therefore, if a workman indulges in an illegal strike, penalties including imprisonment has been prescribed and the petitioner is also armed with disciplinary powers apart from finding solutions within the provisions of the Act. It must be stated here that even the respondents 1 to 3 Trade Unions have also alleged in their strike notice about the 'Unfair Labour Practices' adopted by the writ petitioner. Going by the submissions made on behalf of the writ petitioner, if at the instance of the Unions and workmen writ petitions are entertained about the commission of 'Unfair Labour Practices' by the Managements, then the Courts will become a litigants galore. 17.The attempt of the petitioner to come before this Court seeking for a declaratory relief is an exercise in futility. Even on previous occasions, the petitioner had come forward with prayers claiming similar relief and declarations have been made to the effect that going on a strike pending a reference will be an illegal strike. When it has been patently made as a part of legal provision, the Court need not repeatedly grant declaratory relief to the same effect that too, between the same parties. 18.What is more important is that the concept of a strike is a creation under the I.D. Act, which is a special statute and that statute itself prescribes the remedies in case of any illegalities being committed. The decision of the Supreme Court reported in (1976) 1 SCC 496 [Premier Automobiles Ltd. vs. K.S.Wadke], settles the legal issue regarding the above aspect. The Industrial Disputes Act is a comprehensive and self-contained code insofar as it speaks and the enforcement of rights created thereby can only be through the procedure laid down therein. Neither the civil court nor any other tribunal or body can award relief. Untwalia, J., speaking for an unanimous court, has, in Premier Automobiles observed : SCC p. 503 para 8] “8.The object of the Act, as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes, which means adjudication of such disputes also. The Act envisages collective bargaining, contracts between union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian law of contract.” After sketching the scheme of the Act, the learned Judge stated the law thus : “. . . the civil court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act.” https://hcservices.ecourts.gov.in/hcservices/ 19.Subsequently, when an issue relating to a damage claim made against the workmen for going on illegal strike by an arbitrator's Award, came up for consideration, the Supreme Court in its decision reported in (1976) 2 SCC 82 [Rohtas Industries Ltd. and another vs. Rohtas Industries Staff Union and others] dealt with the said issue and held in paragraphs 28 to 30, which is as follows: Para 28: "It is common case that the demands covered by the strike and the wages during the period of the strike constitute an industrial dispute within the sense of Section 2( k ) of the Act. Section 23, read with Section 24, it is agreed by both sides, makes the strike in question illegal. An #illegal strike# is a creation of the Act. As we have pointed out earlier, the compensation claimed and awarded is a direct reparation for the loss of profits of the employer caused by the illegal strike. If so, it is contended by the respondents, the remedy for the illegal strike and its fallout has to be sought within the statute and not de hors it. If this stand of the workers is right, the remedy indicated in Section 26 of the Act viz. prosecution for starting and continuing an illegal strike, is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that the relief of compensation by proceedings in arbitration is contrary to law and bad. Para 29: .... In Doe v. Bridges [(1831) 1 B & Ad 847 (2)] are the famous and of quoted words of Lord Tenterden, C.J., saying: Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.” Barraclough v. Brown [1897 AC 615], decided by the House of Lords is telling, particularly Lord Watson#s statement of the law at p. 622: “The right and the remedy are given uno flatu and one cannot be dissociated from the other.” In short, the enforcement of a right or obligation under the Act, must be by a remedy provided uno flatu in the statute. To sum up, in the language of the Premier Automobiles Ltd. [SCC pp. 513-514, para 23]: “If the industrial dispute relates to the enforcement of a right or an obligation created https://hcservices.ecourts.gov.in/hcservices/ under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.” Para 30: Since the Act which creates rights and remedies has to be considered as one homogeneous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act.” [Emphasis added] 20.Therefore, the writ petitioner cannot come to this Court each time when the workmen or their respective trade unions issue strike notices and seek for a similar relief. But, on the contrary, they can exercise their managerial power and bring about normalcy by taking appropriate action in terms of relevant laws as are available to them. The present declaratory relief is one based upon the provisions of the I.D. Act and no other rights under any other laws are claimed by the petitioner. They must be directed to approach the forums created under the I.D. Act and must be told that remedy by way of writ jurisdiction under Article 226 of the Constitution of India is not available to them. 21.In this context, it is also relevant to quote the opinion of the Supreme Court reported in (1980) 2 SCC 593 [Gujarat Steel Tubes Ltd. and others vs. Gujarat Steel Tubes Mazdoor Sabha and others] wherein in paragraph 129, it was observed as follows: “Para 129:....The right to unionise, the right to strike as part of collective bargaining and subject to the legality and humanity of the situation, the right of the weaker group, viz, labour, to pressure the stronger party, viz., capital, to negotiate and render justice, are processes recognised by industrial jurisprudence and supported by Social Justice. While society itself, in its basic needs of existence, may not be held to ransom in the name of the right to bargain and strikers must obey civilised norms in the battle and not be vulgar or violent hoodlums, Industry, represented by intransigent Management's, may well be made to reel into reason by the strike weapon and cannot then squeal or wail and complain of loss of profits or other ill-effects but must negotiate or get a reference made. The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Unions and strikes are no more conspiracies than professions and political parties are, and, being far weaker, need succour. Part IV of the Constitution read with Article 19, sows the https://hcservices.ecourts.gov.in/hcservices/ seeds of this burgeoning jurisprudence. The Gandhian quote at the beginning of this judgment sets the tone of economic equity in industry. Of course, adventurist, extremist, extraneously inspired and puerile strikes, absurdly insane persistence and violent or scorched earth policies boomerang and are anathema for the law. Within these parameters the right to strike is integral to collective bargaining.” 22.Apart from this, it must be noted that the provisions of Section 18 of the Trade Union Act, which was enacted as early as in the year 1926, reads as follows: "18. Immunity from civil suit in certain cases.- (1) No suit or other legal proceeding shall be maintainable in any civil Court against any registered Trade Union or any office-bearer or member thereof in respect of any act one in contemplation or furtherance of a trade dispute to which a member of the