Case: India Marine Service Private Ltd Vs. Their Workmen

that the workmen had resorted to go slow tactics which adversely affected their business which was of repairing ships and then observed:"We should also strongly suggest that the management and the union jointly approach the Labour Directorate at once on the following issues:1. Whether the workmen are justified in stopping overtime as and when they like.2. Bonus.In consideration of this we may even agree to pay the workmen certain sum of money, as may be recommended by the Conciliation Officer, on advance account pending the adjudication by the Tribunal of the issue of bonus. It should, however, be clearly understood, that if the Tribunal decides against payment of bonus or allows bonus less than the amount advanced to them, the entire advance money or the difference will be recovered from the wages of the workmen by instalments as may be directed by the Tribunal".This suggestion was peremptorily rejected by the respondent union by its letter dated October 15, 1958 the relevant portion of which is as follows :"We would simply ask where had your good sense for tripartite conference before which you have adopted now we think as a measure of delaying tactics. We know better what to do when we will be asked to attend tripartite conferences."On October 16, 1958, the company wrote to the Labour Commissioner, West Bengal, apprising him of the situation in the factory and requesting him to intervene. It seems that on that day a representative of the company discussed the situation with Mr. Basu, the Assistant Labour Commissioner. Next day the company wrote to Mr. Basu in which it observed that although the financial position of the company does not justify the demand of bonus the company was prepared to make ex-gratia payment of bonus on the same basis as in the previous year subject to three conditions :"(i) the Union condemns the workmens conduct in stopping overtime since 10th October 1958 and putting the company to considerable loss.(ii) the Union undertakes to see that the workmen do not stop doing overtime in future.(iii) the bonus is not to be considered as a condition of service".On November 5, 1958, the respondent union wrote to the company a letter in which they made ten demands, the first of which was that 37 days wages as bonus should be paid to all workmen at the works and head office. They then went on a partial strike on November 13, 1958. On that very day the company published a lock-out notice on its notice board and served copy thereof on the union. That notice reads thus :"For sometime past the workmen by taking resort to organised slow down and by refusing to work overtime and by keeping a strike notice hanging on us have to a great extent crippled our ship repairing business and have made it difficult for us to accept major ship repairs or large orders. Today the workmen have resorted to a strike when we have on our hands, a ship in dry dock awaiting unlocking today and another ship is due to sail in two days time. This strike is definitely illegal and in consequence of this illegal strike we have no choice but hereby to declare lock-out".The lock-out continued till January 5, 1959, on which date the companys works were reopened. The termination of the lock-out was brought by a settlement made between the parties on January 3, 1959. In that settlement it was agreed that 1% of the sale proceeds of the ship repairing section less sales tax, for the whole year will be paid as bonus to the workmen irrespective of profit and loss of the company and 15 days wages will be paid as Puja bonus to the workmen every year irrespective of profit and loss of the company. It is not necessary to refer to the other terms of the agreement.8. It seems to us that the attitude of the company was a reasonable one and that it even proposed to the union and through it to its workmen that work should go on, that the dispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim relief to the workmen. But instead of accepting this reasonable offer the union spurned it contemptuously and for coercing the company encouraged its members to strike work on November 13, 1958. It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement we have no doubt that the strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustifiable lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified it would not be a proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and half between the company and its workers.

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

Explanation:
1[ds]6. It is no doubt true that no enquiry was held on the charges contained in the second charge-sheet and, therefore, that charge-sheet was rightly kept out of consideration by the Managing Director and the Tribunal. It is true that a reference is made to certain extraneous matters in the letter of the Managing Director dated October 29,1958 addressed to Bose. But considering the letter as a whole and particularly the last paragraph it seems to us to be abundantly lear that the decision of the Managing Director to dismiss Bose was based only on the charge ofis true that the last sentence suggests that the past record of Bose has also been taken into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Boses services must be terminated in the interest of discipline he added one sentence to give additional weight to the decision already arrived at. Upon this view it would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing his re-instatement is, therefore, set aside as being contrary tolock-out continued till January 5, 1959, on which date the companys works were reopened. The termination of the lock-out was brought by a settlement made between the parties on January 3, 1959. In that settlement it was agreed that 1% of the sale proceeds of the ship repairing section less sales tax, for the whole year will be paid as bonus to the workmen irrespective of profit and loss of the company and 15 days wages will be paid as Puja bonus to the workmen every year irrespective of profit and loss of the company. It is not necessary to refer to the other terms of the agreement.8. It seems to us that the attitude of the company was a reasonable one and that it even proposed to the union and through it to its workmen that work should go on, that the dispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim relief to the workmen. But instead of accepting this reasonable offer the union spurned it contemptuously and for coercing the company encouraged its members to strike work on November 13, 1958. It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement we have no doubt that the strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustifiable lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified it would not be a proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and half between the company and its workers.