1. In this petition the petitioner, who is the General Secretary of the Maharashtra Mazdoor Congress, has impugned the order of the 3rd respondent in Ref. (ULP) No. 21 of 1977, decided by him on 17th June, 1977. This was a reference under S. 25(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the said Act). The reference was at the instance of the 1st respondent-company, who had sought a declaration to the effect that the strike notice dated 14th May, 1977 given by the petitioner-union was not in consequence with the mandatory provisions of the Act and for the consequential declaration that the strike pursuant to such notice be declared illegal. The contentions of the respondent-company were accepted by the 3rd respondent who ultimately held that the mandatory requirements regarding the strike notice were not observed, that the strike was also invalid by reasons of the provisions contained in S. 24(1)(h) of the said Act, and accordingly ordered (in his own words) that 'this strike commenced and continued by the notice dated 11th May, 1977 is illegal'. In order to appreciate the decision, a few facts may be stated :
2. The petitioner-union gave notice on the 14th of May, 1977 about their intention to go on strike on any day after 28th May, 1977 to the company. A copy of the notice given is annexed as Ext. 'A' to the petition. After the notice was received by the company, replied to it by their letter dated 19th May, 1977 and ultimately filed reference in the Labour Court seeking the declarations as indicated. In their application it was contended, inter alia, that the notice of the proposed strike was not as per Regulation 95 framed under the said Act. This contention is to be found in para 3 of the application. It was further contended that the strike had been commenced and continued in contravention of the provisions contained in S. 24(1)(h) of the said Act. This contention is to be found in para 3 of the application. It was further contended that the strike had been commenced and continued in contravention of the provisions contained in S. 24(1)(h) of the said Act. This contention is to be found in para 4 of the application. Both these contentions, it may be stated, were ultimately accepted by the tribunal.
3. In order to consider whether the decision of the tribunal is proper, the relevant statutory provisions may be first set out. In S. 24 of the said Act sub-s. (1) defines what is an 'illegal strike'. We are concerned principally with cls. (a), (b) and (h) of the said sub-section, which may be set out :
'S. 24 Illegal strike and lock-out :
In this Act, unless the context required otherwise,
(1) 'illegal strike' means a strike which is commenced or continued -
(a) without giving to the employer notice of strike in the prescribed form, or within fourteen days of the giving of such notice;
(b) whether there is a recognised union, without obtaining the vote of the majority of the members of the union, in favour of the strike before the notice of the strike is given;
(h) in cases where an industrial dispute has been referred to the adjudication of the Industrial Tribunal or Labour Court under the Central Act, during the pendency of such proceeding before such authority and before the conclusion do such proceeding, if such proceeding is in respect of any of the matters covered by notice of strike :
Provided that, nothing in cls. (g) and (h) shall apply to any strike, where the union has offered in writing to submit the industrial dispute to arbitration under sub-s. (6) of S. 58 of the Bombay Act or S. 10A of the Central Act ....'
4. Now, it may be stated that rules were framed by the State Government under the said Act, being the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Rules, 1975, by a Notification issued on 8th September, 1975. These were pursuant to authority conferred on the State Government by S. 61 of the said Act. It is the said Rules which provide for the form in which notice is to be given, and the rule with which we are concerned is Rule 22 of the said Rules; it is in the following words :
'22. NOTICE OF STRIKE - The notice of strike under clause (a) of sub-s. (1) of S. 24 shall be in the Form I and shall be sent by registered post.'
5. Form I prescribed under the said Rules contains two parts as the printed form, indicates, the first is applicable generally to all cases and the second part only where a notice is given by a recognised union. Now, in this particular case it is the admitted position that the petitioner is not a registered union; so the second part of the form designated with the numeral 2 in Form I will have no application.
6. The Form requires an Annexure containing statement of reasons for the proposed strike. According to the prescribed form, further, there is an endorsement at the foot of the form which reads as follows : Copy to : (1) the Investigating Officer, (2) the Registrar, Industrial Court, Maharashtra, Bombay, (3) the Judge, Labour Court, and (4) the Commissioner of Labour, Bombay. This would ordinarily suggest (though there is no positive statements so that effect) that copies were to be sent to these four authorities.
7. As far as the present notice is concerned, it is the admitted position that copy of the notice had only been sent to the Assistant Commissioner of Labour, and, therefore, admittedly, copies thereof were not sent to the first three of the four authorities named. Even as far as the Commissioner of Labour is concerned, it is a moot point whether sending of the copy of the notice to the Assistant Commissioner of Labour is equivalent to sending it to the Commissioner of Labour.
8. Regulation 95, to which reference is made in the application on behalf of the company and in the order of the 3rd respondent, is to be found in the Regulations framed by the Industrial Court under S. 33 of the said Act; S. 33(1) provides as follows :
'S. 33. Regulations to be made by Industrial Court (1) The Industrial Court may make regulations consistent with the provisions of this Act and rules made thereunder regulating its procedure.
9. As the application was filed in the Labour Court, it appears obvious that Regulation 95, which was part of the Regulations framed under S. 33, had no bearing on the question under consideration by the Tribunal.
10. It may be mentioned that as far a Labour Courts are concerned, power is also given to the Industrial Court to frame necessary regulations and this power is to be found in S. 44(b) of the said Act, which provides as follows :
'S. 44. The Industrial Court shall have superintendence over all Labour Courts and may,
(a) .... .... ....
(b) make and issue general rules and prescribe forms for regulating the practice and procedure of such Courts in matters not expressly provided for by this Act, and in particular, for securing the expeditious disposal of cases .....'
Now, under the rules framed under S. 44(b) we have Rule 50 which reads as follows :
'50. A union desiring that its members in an undertaking should go on strike of any type shall give a notice in form '9' of the Rules to the employer of the undertaking. The notice shall be sent to the employer by registered post A.D. No notice shall be given in respect of the proposed strike, unless the decision to go on strike is affirmatively taken by a vote in favour of going on such strike by majority of the members of the union who are employer in the undertaking in which it is proposed to go on strike. Votes shall be recorded at such meeting by ballot if demanded.'
11. Form '9' mentioned in the above Rule appears to be a mistake. By this would not have any serious consequence in the view I have taken of the proper function of the Regulations and Rules framed under S. 33 and S. 44(b) respectively. It appears to me that the correct form of the notice is Form I at the end of the Rules framed by the State Government under the power conferred on it by S. 61 of the said Act.
12. The Regulations framed by the Industrial Court for its own procedure under S. 33 and the Rules framed for the governance of the proceedings before the Labour Courts under S. 44 cannot be regarded as equivalent to statutory provisions governing the rights and obligations of the two parties before the Court, viz., the workmen represented by the union and the employers. If such Regulations or Rules intend to lay down rules for any such purpose, they would appear to go beyond what is provided by statute. Thus, in my opinion, the claim of the company and the application made pursuant to that claim that the strike is illegal would be required to be considered only with reference to the provisions of S. 24 of the said Act read with Rule 22 of the Rules framed by the State Government and Form I prescribed by the State Government. Reference to Regulation 95 (or to Rule 50) would appear to be thoroughly irrelevant for our purposes.
Wednesday, 3rd August, 1977
13. Having arrived at this conclusion, let us now see whether the notice sent by the union to the employer was violative of any statutory requirements or the requirement of the Rules framed by the State Government under S. 61 of the said Act; and, if so, what would be consequence of such violation. The second question which would be required to be considered in view of the finding of the Tribunal is whether the strike became illegal by reason of any convention of the provisions contained in S. 24(1)(h) of the said Act.
14. The statutory provision regarding notice is to be found in S. 24(1)(a). Two requirements are postulated, viz., that a strike is commenced only after a notice in the prescribed form has been given and that the strike is not commenced or continued within fourteen days of giving of such notice. The latter requirement means only that a period of fourteen days must expire after the notice is received by the employer. The statutory words containing the first requirement further provide that the notice must be in the prescribed form. For such prescribed form, one has to turn to the Rules framed by the State Government under S. 61. The relevant Rule is Rule 22, with which we have to consider Form I. Rule 22 provides that notice of strike under clause (a) of sub-s. (1) of S. 24 shall be in Form I and shall be sent by registered post. Finally, we have Form I which indicates the name of the party of parties giving the notice together with their address. It provides further that the notice must be addressed to the employer, the it should contain a reference to S. 24(1) of the said Act, and the reasons for the proposed strike should be indicated in the Annexure to the said notice. At the foot of the form there is an endorsement indicating that copies of the notice are to be sent to four authorities already mentioned earlier, viz., the Investigating Officer, the Registrar of the Industrial Court, the Judge of the Labour Court and the Commissioner of Labour.
15. Now, it is well-settled and we need not refer to any authority for this purposes that the use of the word 'shall' or 'may' by the Legislature or by the Government in the exercise of its rule-making powers is not decisive of the nature of the provision following these words. The provision following the above word 'shall' may, if the circumstances so require, be read as only directory and not considered mandatory. Similarly, if the occasion so warrants, the statutory provisions following the word 'may' be regarded as mandatory and not optional. Now, if the section, i.e. S. 24(1)(a), Rule 22 and the Form are considered in their totality, we find the following requirements :
(1) Employees cannot commence strike without giving notice of the proposed strike to the employer.
(2) The notice must be in the prescribed form.
(3) The strike may not be commenced or continued within fourteen days of the giving of such notice.
(The above requirements are provided for in S. 24(1)(a).
(4) The notice shall be in Form I which is the prescribed form.
(5) The notice shall be sent by registered post.
(requirements (4) and (5) are further prescribed by Rule 22).
(6) The notice must be addressed to the employer.
(7) The notice must indicate the name of the party or parties giving the notice, i.e., either the Trade Union or names of elected representatives of the workmen where no trade union exists.
(8) The notice must include as an Annexure the statement of reasons for the proposed strike.
(9) The notice must bear endorsement that copies thereof have been forward to the four persons named in Form I. (Requirements (6) to (9) can be deducted from Form I).
16. Now, it is apparent from a perusal of these requirements that some of them are vital to the requirement of giving notice, whereas others are merely for the purpose of ensuring that the notice reaches the party to whom it is addressed and fairly indicates to the party the proposed action and the cause for the proposed action viz., the strike. To give an illustration Rule 22 requires that the notice shall be sent by registered post. Is it conceivable that the employer will be able to move the Labour Court to have the strike declared illegal after admitting that he has received the notice of the strike, after considering that the notice is in accordance with Form K and after it is found that the strike has been commenced after expiry of the statutory period of fourteen days, only on the ground that the notice has not been sent by registered post although it is shown that it has been served on the employer by some other manner, e.g., by hand delivery To say so would be to reduce the provision to meaningless absurdity. Therefore, although the rules says that the notice shall be sent by registered post, this cannot be considered as laying down an obligatory requirement but only a directory provision suggesting that if the notice is to sent, receipt thereof may be presumed and the Court would normally act on the basis of such presumption. In other words the notice sent by registered post will be duly presumed to have been received by the employer after expiry of a reasonable interval if it has been sent to the proper address. Thus although the provision appears on the face of it to be mandatory, properly considered it need not be accepted as such.
17. In my opinion, similar conclusion must follow as to the requirements to be found in the section as also in the rule that the notice must be given in the prescribed form. The prescribed form required that the name of the party giving the notice should be mentioned at the outset. Suppose the notice complies with all other requirements but does not give the name at the outset but merely gives the name of the union after the signature of the General Secretary, or in the alternative the notice is signed by five elected representatives and they mentions their capacity after their signature, if such capacity is indicated not at the end of the notice but at the end before the statement of reasons or a covering letter, then, would the notice be regarded as bad I think the view which is required to be taken is that if the notice given substantially contains the essential requirements which are to be found in the form, then the notice must be one which must be considered to be in compliance with the statutory requirements and the notice and the consequential strike would not become illegal, merely because of some departure from the prescribed form. The question to which the Tribunal will have to address itself is : Are all the four requirements of the Form K satisfied These four requirements in my opinion are : (1) the name of the union giving the notice must be found clearly mentioned; (2) the notice must be addressed to the employer whose name and address must be clearly indicated; (3) there must be a clear notice of the proposed action, viz., the strike and (4) either in an Annexure or in similar manner the reasons for the proposed strike must be specified. A particular order, a particular hearing to not appear to be of the essence of such notice. When one goes through the notice given in the instant case by the union, it is found that all the essential requirements of the prescribed form are satisfied, though the notice is by way of an ordinary letter and does not bear the heading 'Notice of Strike' or contains the other particulars of a minor nature which are contained in Form I.
18. Finally, the question which is to be considered is whether the notice is defective because copies of the same are not sent to the four authorities. Now it is to be remembered that Form I provides at the foot thereof is an endorsement, viz., copy to : (a), (b), (c) and (d), There is no substantive to be found either in the statute S. 24(1)(a), or in the Rules (Rule 22) that copies of the notice of strike shall be sent to X, Y and Z. At this stage one may compare the provision to be found in Rule 62 of the Industrial Disputes Act, (Bombay Rules) 1957, which provides for a memorandum of settlement arrived at between the employer and his workmen otherwise than in the course of conciliation proceedings before a conciliation officer or a Board is to be sent to certain authorities. The object of such requirement in this Rule 62 is clear. In certain circumstances such settlement may bind all the workmen although arrived at between the employer and a union which perhaps may not represent all the workmen. When later on the propriety and efficacy of such settlement is being considered, an assurance is required that the settlement was in fact arrived at the time when it is alleged to have been arrived at, and this is ensured by the requirement prescribed in Rule 62, that copies of such settlement must be sent to the various authorities mentioned in Rule 62, sub-rule (4). There is no such reason which commands itself as a possible reason why copies of a notice of strike in Form I are required to be sent to all the four authorities named at the foot of the said form. Even as far as these four authorities are concerned, I would take the view that the sending a copy of the notice to the Assistant Commissioner of Labour would at least satisfy the requirement (if found implied therein) that the notice should be sent to the Commissioner of Labour. Here also I would pose the question posed earlier in a different way. Would the notice of strike be bad merely because it does not bear this endorsement on its face if in fact it can be proved that copies of the notice have been sent to the four authorities concerned It would be absurd to hold that although copies of the notice had been sent to the four authorities, the notice would have to be regarded as not in conformity with Form I and hence the strike would be illegal merely because the notice does not bear on it the necessary endorsement.
19. The result of this discussion would be that pursing the requirements postulated in S. 24(1)(a), Rule 22 and Form I, what is required is a clear notice of the proposed action to the employer; the notice must clearly specify the reasons for the proposed actions, viz., the strike and the strike must not commence within a period of fourteen days of the receipt by the employer of the notice. The notice must of course indicate clearly and specifically the name of the union or the elected representatives on whose behalf it is sent. If a notice given satisfies these essential requirements and is received by the employer, then in my opinion, it cannot be held to be invalid or illegal merely because it is not exactly in the prescribed form or because it is not sent by registered post or because copies of it are not served on the four authorities concerned. These provisions must be considered and held to the directory and not mandatory. A strike commenced after the expiry of fourteen days of such notice cannot be declared to be illegal by reason of S. 24(1)(a) of the said Act.
20. As stated earlier, it has been held by the 3rd respondent that the strike was also illegal because of the provisions contained in S. 24(1)(h) of the said Act. The reasoning to be found in paragraph 10 of the order of the 3rd respondent is not at all clear and does not easily commend itself. The learned advocate for the 1st respondent has also very fairly not supported the conclusion of the Tribunal on the basis of contravention of the provisions of S. 24(1)(h) of the said Act. The 3rd respondent has unfortunately ignored the very vital portion of the statutory provision which requires that the pending proceedings must be in respect of any of the matters covered by the notice of strike. Section 24(1)(h) would render the proposed strike illegal if one of the reasons for the proposed action of strike indicated in the notice refers to a matter in respect of which industrial dispute has already been referred to the adjudication of the Industrial Tribunal or the Labour Court under the Central Act. There is no such finding and indeed one could not be given.
21. I cannot part with this matter without observing that to a large extent the 3rd respondent misdirected himself by not framing proper issues and not keeping before him the provisions of the enactment at all times whilst determining the question posed for his determination. It would seem also that he did not have the necessary assistance from the persons appearing before him.
22. I would further indicate by prima facie view that a cursory perusal of the Regulations framed by the Industrial Court under S. 33 for regulating its own procedure and the Rules framed by the Industrial Court under S. 44 for regulating the procedure of the Labour Courts under the said Act appear to me to go beyond the scope of such Regulations and Rules. If there are any such Regulations or Rules which go beyond what can be fairly encompassed with the concept of regulation of procedure, such regulations and rules would deserve reconsideration and perhaps deletion after such reconsideration.
23. Only one final point may be touched before passing final order in this petition. Is there a violation or contravention of the provisions of S. 24(1)(b) of the said Act which would render the strike illegal Section 24(1)(b) only applies to a recognised union and it is the position admitted by both the advocates that the union which had given the notice of strike was not a recognised union. Thus, the question postulated in para 3 of the application by the employer did not really arise. It appears that Regulations 95 (framed by the Industrial Court under S. 33) and Rule 50 (framed by the Industrial Court under S. 44) do not confine themselves to recognised unions. To that extent also the said Regulation and the said Rule would seem to be inconsistent with the statutory provision.
24. For the reasons indicated above, I am of opinion that the decision of the 3rd respondent and the ultimate order in Reference (ULP) No. 21 of 1977 are thoroughly unsustainable and are based on a misreading of the legal position.
25. In the result, the Rule is made absolute in terms of prayer (a) The parties, however, will bear their own costs of the proceedings.