Case: Management of Churakulam Tea Estate Private, Limited Vs. Its Workmen &amp; Another

such proceedings:* * * *"22. The expression Board is defined inSection2 (c) as a Board of Conciliation, constituted under the Act. Admittedly there were no conciliation proceedings pending before such a Board on November 30, 1961, the day on which the factory workers went on strike and hence the strike does not come underSection23 (a). No doubt if the strike, in this case, is hit bySection23 (a), it will be illegal underSection24 (1) (i) of the Act; but we have already held that it does not come underSection23 (a) of the Act. It follows that the strike, in this case, cannot be considered to be illegal.23. Alternatively, Mr. Gokhale contended that in any event the strike on November 30, 1961, was thoroughly unjustified. Counsel urged that the management had participated in the conciliation proceedings, relating to the claim for bonus and, when those proceedings failed, the question of referring the dispute, for adjudication, was pending before the Government. The workmen could have made a request to the Government to refer the dispute for adjudication and, therefore, the factory workers going on strike cannot be justified. In this connection Mr. Gokhale referred us to the observations, made by this Court in Management of Chandramalai Estate, Ernakulam v. Its Workmen, (1960) 3 SCR 451 =(AIR 1960 SC 902 ). In the said decision, this Court deprecated the conduct of workmen going on a strike, without waiting for a reasonable time to know the result of the report of conciliation proceedings. In our opinion, this decision does not at all support the appellant.24. There is a fundamental fallacy, in this contention of the appellant, when it proceeds on the basis that the strike by the factory workers, on November 30, 1961, was directly in connection with the demand for bonus for the years 1957 to 1959. On the other hand the evidence, which has been placed before us by Mr. Puri, learned Counsel for the respondent, clearly establishes that the strike was as a protest against the unreasonable attitude of the management in boycotting the conference held on November 28, 1961, by the Labour Minister of the State. The evidence of W-1, the Secretary of the Union, is to the effect that to protest against the attitude of the management in boycotting the conference held on November 23, 1961, the factory workers went on a token strike for half a day, on November 30, 1961. There is no cross-examination of this witness, on this aspect. There is also nothing in the evidence adduced by the management to show that the strike on November 30, 1961 was not for the reason spoken to by the Union Secretary. Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard, is accepted.25. The last question, that arises for consideration, relates to the claim for wages of the workmen, for the period of lay-off, viz., December 1, 1961 to December 8, 1961. On the very day that the factory workers went on strike i.e., November 30, 1961, the management put up a notice, Ex. M-15, to the effect that since all the factory workers had gone on strike at 1 P. M. without previous intimation, the management was forced to lay-off without compensation all the workmen in the entire establishment as from December 1, 1961, underSection25E (iii) of the Act which lays down that no compensation shall be paid to a workman who has been laid-off, if such laying-off; is due to a strike or slowing down of production on the part of workmen in another part of the establishment. The correspondence shows that due to the intervention of the Deputy Labour Officer, the Management was assured, on December 7, 1961, that the workmen would not resort to any strike and accordingly, the lay-off was withdrawn from December 8, 1961, but the management stated that no compensation would be paid for the period of the lay-off.26. Here, again, the plea of the workers is that all of them reported for duty on December 1, 1961, but they were not given any work by the management on the ground that there was a lay-off. This plea has been found to be true, by the Tribunal; but, according to the management, the lay-off, in this case, during this period, is justified, under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. According to the management, inasmuch as there was a strike in the factory section, work in the other sections could not be carried on; and, as the management were not sure whether the workmen would turn up for work, lay-off, in the circumstances, was justified. We are not inclined to accept this contention advanced on behalf of the management. We have already referred to the finding of the Tribunal that twenty-seven factory workmen alone went on strike on November 30, 1961, and the entire body of workmen presented themselves for work on December 1, 1961, but they were declined work by the management on the ground of lay-off. The plea of the management that they suffered loss, on account of the half a days strike on November 30, 1961, justifying the lay-off, has not been accepted by the Tribunal. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours token strike on November 30, 1961, would not have resulted in any loss to the management, if they had allowed the workmen to do work on December 1, 1961. The Tribunal has also held that the lay-off, by the management, was as a retaliatory or vindictive measure against the factory workers, who went on strike on November 30, 1961. We are in agreement with the findings, recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It will be seen from the above extract that an additional circumstance has also been insisted upon, in the case of customary or traditional bonus, that the payment must have been at a uniform rate throughout to justify an inference that the payment at such and such a rate had become customary and traditional in the particular concern. Therefore, even if the claim, in the case before us, is considered as a customary or traditional bonus, this test will have to be satisfied and, as mentioned earlier, it is lacking in this case.Pausing here it must be noted that the payment, at a uniform rate, was not found necessary for establishing a claim for payment of bonus, as an implied condition of service, as that claim was held to relate to a festival. This aspect has been missed by the Tribunal in the award under consideration, and it has proceeded on the basis that this Court has laid down that, notwithstanding that a payment is not at a uniform rate, nevertheless, a claim based on an implied condition of service, can be recognised, provided the other tests are satisfied.From the decisions, cited above, it follows that the Tribunal, in the instant case, was wrong in holding that an inference could be drawn for payment of bonus, as an implied condition of service, in the circumstances of the present case, the payment, admitted, was not uniform and was not connected with any festival. In our view, it is impossible to infer an implied condition of service, where payment has not been uniform in the past, unless such payment can he connected with some festival. In this case, admittedly, the payments have neither been uniform, nor were they connected with any festival.19. The claim cannot also be sustained; even as a customary or traditional bonus, because, apart from the fact that it is not connected with any festival, one of the essential ingredients, viz., that the payment should have been at a uniform rate throughout, is also admittedly lacking in this case.Therefore, the Tribunal was in error in awarding bonus for the three years in question.20.The second question, that arose for consideration by the Tribunal, related to the claim for wages, of thefactory workers, who went on strike on November 30,1961. There is nocontroversy that the factory workers alone went on strike, for half a day, on November 30, 1961. The Tribunal has awarded wages for this period. Mr.Gokhale, learned Counsel, contended that the strike was both illegal and unjustified.The events leading up to the strike, on that date, may be briefly noted. The conciliation proceedings relating to the claim for bonus having failed, the question of referring for adjudication to the Tribunal was under consideration of the Government. The Labour Minister had called for a conference of the representatives of the management and the workmen and the conference had been fixed on November 23, 1961. The representatives of the workmen attended the conference, but the management boycotted the same. It is the case of the workmen that to protest against the recalcitrant attitude of the management in not attending the conference, thefactory workers alone went on strike, from 1 P. M. on November 30,doubt if the strike, in this case, is hit bySection23 (a), it will be illegal underSection24 (1) (i) of the Act; but we have already held that it does not come underSection23 (a) of the Act. It follows that the strike, in this case, cannot be considered to beour opinion, this decision does not at all support the appellant.There is a fundamental fallacy, in this contention of the appellant, when it proceeds on the basis that the strike by the factory workers, on November 30, 1961, was directly in connection with the demand for bonus for the years 1957 to 1959. On the other hand the evidence, which has been placed before us by Mr. Puri, learned Counsel for the respondent, clearly establishes that the strike was as a protest against the unreasonable attitude of the management in boycotting the conference held on November 28, 1961, by the Labour Minister of the State. The evidence ofthe Secretary of the Union, is to the effect that to protest against the attitude of the management in boycotting the conference held on November 23, 1961, the factory workers went on a token strike for half a day, on November 30,1961. There is noof this witness, on this aspect. There is also nothing in the evidence adduced by the management to show that the strike on November 30, 1961 was not for the reason spoken to by the Union Secretary. Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard, is accepted.25. The last question, that arises for consideration, relates to the claim for wages of the workmen, for the period ofviz., December 1, 1961 to December 8, 1961. On the very day that the factory workers went on strike i.e., November 30, 1961, the management put up a notice, Ex.to the effect that since all the factory workers had gone on strike at 1 P. M. without previous intimation, the management was forced towithout compensation all the workmen in the entire establishment as from December 1, 1961, underSection25E (iii) of the Act which lays down that no compensation shall be paid to a workman who has beenff; is due to a strike or slowing down of production on the part of workmen in another part of the establishment. The correspondence shows that due to the intervention of the Deputy Labour Officer, the Management was assured, on December 7, 1961, that the workmen would not resort to any strike and accordingly, theHere, again, the plea of the workers is that all of them reported for duty on December 1, 1961, but they were not given any work by the management on the ground that there was aThis plea has been found to be true, by the Tribunal; but, according to the management, thein this case, during this period, is justified, under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. According to the management, inasmuch as there was a strike in the factory section, work in the other sections could not be carried on; and, as the management were not sure whether the workmen would turn up for work,in the circumstances, was justified. We are not inclined to accept this contention advanced on behalf of the management. We have already referred to the finding of the Tribunal thatfactory workmen alone went on strike on November 30, 1961, and the entire body of workmen presented themselves for work on December 1, 1961, but they were declined work by the management on the ground ofThe plea of the management that they suffered loss, on account of the half a days strike on November 30, 1961, justifying thehas not been accepted by the Tribunal. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours token strike on November 30, 1961, would not have resulted in any loss to the management, if they had allowed the workmen to do work on December 1, 1961. The Tribunal has also held that theby the management, was as a retaliatory or vindictive measure against thefactory workers, who went on strike on November 30,We are in agreement with the findings, recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified.