1. An industrial dispute having arisen between the employees and workmen of the Dewan Bahadur Ramgopal Mills, Ltd., Hyderabad, a reference under S. 10(c) of the Industrial Disputes Act, 1947, has been made to this Court for adjudication through G.O. Ms. No. 575, dated 30 May 1957, in respect of the matters specified in the following : # ANNEXURE # Where the following demands of the workmen are justified (1) Compensation for involuntary unemployment. (2) Payment of daily allowance to badlis for the days on which they are not provides with work. (3) Arrangement for helpers in slubbing and intertenter. (4) Payment of wages for 22 April 1957. It may be mentioned at the outset that the employees of the Dewan Bahadur Ramgopal Mills are divided into two groups which are represented by the two rival unions. Sri M. I. K. Qureshi and Sri Arjun Rao have, on behalf of these two unions, submitted their statements in Court which do not at all differ in material particulars. The employers have filed a counter contradicting the allegations of the workmen and negativing their claims. Issue (4). - Taking up issue (4), I find that the issue has not been worded correctly. It is admitted by both the parties that the employees staged a tools-down strike for one hour on 22 April 1957, which was declared by the management to be illegal and unjustified. The management, therefore, deducted two hours' wages for 22 April 1957 and not the full day's wages. The employees also admit this fact but contend that the strike was not only justified but also legal.
2. The legality of the strike has been challenged by the management on the ground that no strike notice was issued by the workmen in accordance with S. 22(1) of the Industrial Disputes Act, 1947, which reads as follows :
'No person employed in a public utility service shall go on strike in breach of contract :
(a) without giving to the employer notice of strike as hereinafter provided, within six weeks before striking; or
(b) within 14 days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.'
3. It is pointed out that textile industry has been declared to be a public utility service in the State of Andhra Pradesh for a period of six months through G.O. Ms. No. 62(Social Welfare and Labour Department), dated 16 January 1957. The workmen concede the point that the Dewan Bahadur Ramgopal Mills being a textile factory is a public utility service but stress that they had issued a notice of strike on 3 April 1957 (Ex.M. 7). However, the management's representative has objected that this notice cannot be deemed to be a legal notice. According to rule 52 (1) of the Hyderabad Industrial Disputes Rules of 1950 contained in the notification No. 124, dated 7 December 1950, of the Labour Department, the notice of strike to be given by employees in a public utility service shall be in form E.
4. A perusal of form E shows that the notice of strike shall specify the date of strike. Rule 71 of the Industrial Dispute (Central) Rules of 1957 contains similar provision. It is contended that neither the so-called notice of strike Ex. M. 7 is on the prescribed from nor does it specify any date of strike. In my opinion, the provision of rule 52 cited above is mandatory and contravention thereof renders the alleged notice Ex. M. 7, ineffective as a statutory notice, as contemplated by S. 22(1) of the Industrial Disputes Act, 1947.Another objection advanced by the management is that the present issue formed part of a memorandum of demands which were taken to the conciliation officer who sent his report under S. 12(4) of the Industrial Disputes Act to the Government on 19 April 1957, and therefore the strike should not have been staged on 22 April 1957, i.e., within seven days after the conclusion of the conciliation proceedings. Relying on S. 22(1), the management stress that the strike is unlawful. It is pointed out that according to Ex. M. 27-10, the conciliation proceedings commenced on 5 January 1957 and the issues for conciliation were contained in the memorandum of demand, dated 26 October 1956, served by the Worker's Union. Besides the letter Ex. M. 27-18 addressed by the labour officer, Sri Moosvi, to the management of the Dewan Bahadur Ramgopal Mills, shows that the conciliation report was submitted by him to the concerned authorities on 19 April 1957. These facts have been admitted by Sri M. I. K. Qureshi, general secretary of the Dewan Bahadur Ramgopal Mills Workers' Union, in his petition, dated 31 August 1957 filed in Court in connation with his right of representation [vide paper No. 11, file C]. In the light of these facts I accept the contention of the management that the tools-town strike resorted to by the workmen on 22 April 1957 for one hour cannot be deemed to be lawful.
5. On the other hand, the workmen's representative Sri Sanjiva Reddi, appearing on behalf of Sri Arjun Rao's ground and relying on the rulings reported in 1952 - I L.L.J. 68, 1952 - II L.L.J. 255, 1953 - I L.L.J. 49, 1954 - II L.L.J. 103, 372 and 516, contends that even if the strike was illegal on account of the fact that the industry was public utility service in which the requisite notice was not given, the workers were eligible to get payment at a reduced rate for the period of such a strike which was provoked by the conduct of the company. This view has been expressed by the Industrial Tribunal, West Bengal, in Mahalaxmi Cotton Mills, Ltd. v. Their workmen [1952 - I L.L.J. 68]. But the above opinion was not upheld in appeal by their lordships of the Labour Appellate Tribunal of India (at Calcutta) who observed that where a strike was justified as a result of provocation by the company, the workers will not be entitled to any wages for the period of such a strike, since to allow the same would lead to a conflict in the civil and criminal law as the workmen who will be liable to punishment for the same conduct in the criminal law would be required to be compensated under the civil law, which would be anomalous [Mahalaxmi Cotton Mills, Ltd. v. Their workmen [(1952 - II L.L.J. 635)]. The ruling reported in 1952 - II L.L.J. 255 can easily be distinguished because in that case the strike was held to be legal and justified whereas the strike in the present case has been held to be illegal as mentioned above.
6. In 1953 - I L.L.J. 49 the Labour Appellate Tribunal of India have ordered restoration of wages cut for the strike which was held to be justified. But this ruling is not applicable to the present case cited above their lordships observed at p. 52 that the strikes were not illegal inasmuch as they did not fall within any of the provisions of Ss. 22(1), 23, and 24 of the Industrial Disputes Act, 1947, whereas in this case the strike has been held to be illegal. In 1954 - II L.L.J. 103 the industrial tribunal, Ernakulam, observed that it is only in cases where strikes are illegal and perverse that the workmen would be denied anything by way of compensation. The rulings reported in 1954 - II L.L.J. 372 and 516 are not applicable to this case because they deal with justifiability of order of dismissal passed against the employees for participating in illegal or unjustified strike.
7. The management's representative has contradicted the aforesaid arguments of the workmen on the strength of the ruling in Indian Factories Journal, dated 15 August 1957 [12 F.J.R. 363 at 367] and 1955 II - L.L.J. 97 at 98. Both these rulings, however, cannot be applies to the present case, because they deal with the stay-in-strike whereas in this case the workmen had only staged a token tools-down strike for one hour. In one of the cases cited, the workmen had even resorted to destruction of the property. But the rulings reported in 1951 - II L.L.J. 21, 1952 - I L.L.J. 803 and 1952 - II L.L.J. 635, 640, are in support of the employers. In 1952 - II L.L.J. 621, their lordships of the Appellate Tribunal of India have held that as the workmen commenced strike before the lapse of seven days after termination of conciliation the strike was illegal. In 1952 - I L.L.J. 803, the Appellate Tribunal of India observed that the wages for the period of strike during the pendency of proceedings before the tribunal was not payable as the strike was illegal. Similarly in 1952 - II L.L.J. 635, the Appellate Tribunal of India held to the same effect. The above decisions of the Labour Appellate Tribunal of India support the contention that illegality of the strike is sufficient to deprive the workmen of the wages for the strike period. According to the ruling reported in 1952 - II L.L.J. 635 referred to above the propriety of the strike need not be gone into when the strike was unlawful. But then the question that arises for consideration is whether the management could deduct two hours' wages for one hour tools-down strike staged by the workmen on 22 April 1957. The employers argue that S. 9 of the Payment of Wages Act employers them to deduct eight days' wages when the employees absent themselves from the place of duty. But the explanation to the above section shows that in order to inflict punishment on the workmen under S. 9 of the aforesaid Act, it is essential that the workmen's refusal to work is based on a cause which is unreasonable. Exhibit M-7, dated 3 April 1957, shows workers have requested the management to refer the issues pending before the conciliation officer for adjudication to the industrial tribunal or labour court. They have also clarified their position that in case their request is not granted, they would resort to a tools-down strike. Again on 19 April 1957 the workmen addressed a letter Ex. W. 1 to the Labour Commissioner and gave copy thereof to the management stating that they would wait for a reply from the employers till 2 April 1957 after which they would be constrained to hold a tools-down strike without any notice. It is true that the aforesaid letters do not constitute legal or requisite notice as envisaged by S. 22(1) of the Industrial Disputes Act as held above but they are sufficient to establish the fact that the employees had reasonable cause for holding a tools-down strike. The management's plea expressing their inability to get the issues in dispute referred for arbitration to the industrial tribunal or the labour court is untenable in the light of S.10(c) of the Industrial Disputes Act, which reads as follows :
'Where the parties to an industrial dispute apply in the prescribed manner whether jointly or separately, for a reference of the dispute to a board, court or tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.'
8. It is obvious that in the present case the management did not pay any heed to the request of the employees to move the appropriate Government for making a reference of the issues in question to the competent forum. The employers did not even care to reply to the employees' letters Ex. M. 7 or Ex. W. 1. As a result I am of opinion that the employees had some justification for staging a token tools-down strike for one hour on 22 April 1957 though, as remarked above, the strike was illegal. Therefore, the employees would be deprived of their wages for the strike period only (i.e., one hour) and the extra one hour's wages deducted from their earnings should be restored to them. Issue decided accordingly.
9. Issue (2) - Daily allowance for badli workers. - It is submitted by both the parties that the system of badli workers is a peculiar features of the textile industry. In the Industrial Disputes Act, badli workman has been defined in S. 25(c) of explanation as follows :-
'Badli workman means workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment, but shall cease to be regarded as such for the purpose of this section, service in the establishment.'
10. Mr. Sanjiva Reddi has relied on the above definition of badli workman and stressed that 600 employees in the Dewan Bahadur Ramgopal Mills have completed one year of continuous service, and therefore, they are entitled to lay-off compensation under S. 25(c) of the Industrial Disputes Act. Sri Sanjiva Reddi has also urged that the badli workmen who have not completed one year of continuous service are also entitled to some allowance on humanitarian grounds. According to him the badli workman is bound to attend the factory every morning in order to try his luck and to find out whether he would be able to get work for that day. He has to get also his attendance marked in the attendance register. If after waiting for one or two hours he is asked to go away without work it is but natural that his whole day is wasted, as he cannot find work anywhere else at a late hour in the day. On this ground Sri Sanjiva Reddi contends that the badli workman should, out of sympathy, be paid something by the management, otherwise he would be thrown on the verge of starvation. In his support he has relied upon the ruling in 1953 - I L.L.J. 665 at 667 wherein the industrial tribunal, Visakhapatnam, held that each badli should be paid four annals for each working day on which he is present in time at the gate twice a day in the morning and in the afternoon, gets attendance marked and does not leave till he is told to go away or till after one hour expires after work commences whichever is earlier However, the said ruling has been set aside by the Labour Appellate Tribunal of India in 1953 - II L.L.J. 512 [Nellimarla Jute Mill Company, Ltd., Chittevalsa Jute Mills, Ltd., and their workers]. Their observations are quoted below :-
'For the mere fact that a company voluntarily maintains a register, it cannot be ordered to pay allowance to the badlis who are not company's workmen when they are unemployed. There is no analogy between the badlis and seasonal workmen (such as those employed in the sugar factories) who are paid retaining allowances.'
11. I, therefore, reject the plea of the employees that they are entitled to some sort of allowance out of sympathy with them. Another point that has to be considered is whether such badli workmen who have completed one year of continuous service according to S.25(c) of the Industrial Disputes Act are entitled to lay-off compensation. In this connexion we have to bear in mind that the very nature of the work of a badli is such that he gets no work. Badlis' getting work is contingent upon there being employment when there is no work to provide to them [vide 1957 I.C.R. 551 at 554]. The following observations made by the Industrial Court, Bombay, in the ruling in 1955 - I L.L.J. 580 are very significant: -
'A badli workman is one who is employed on the post of a permanent operative or a probationer who is temporarily absent. It is only when a permanent operative or probationer is temporarily absent that a badli is employed. He has no right to expect employment every day; when no such badli work is available he could not claim employment as a matter of right. Hence when no work was available, refusal to give employment to badli could not be considered to be a refusal by the employer to employ him. Such refusal could not be considered to amount to lay-off within the meaning of S. 2(kkk) of the Industrial Disputes Act.'
12. Lay-off has been defined in S. 2(kkk) as under :-
Lay-off. - With its grammatical variations and cognate expression, means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.
13. The expression 'for any other reason' must be construed ejusdem generis. In the present case, the refusal to give work to badli workmen even though they have completed one year of continuous service was not due to any of the reasons mentioned in the definition. Therefore, it could not be considered to be lay-off. The result is that the badli workmen of the Dewan Bahadur Ramgopal Mills are not entitled to claim lay-off compensation or any allowance for refusal of the employers to provide work to them for want of work.Issue (1) - Compensation for involuntary unemployment. - It may be noted that total strength of the workmen employed in the Dewan Bahadur Ramgopal Mills comprises of three categories as detailed below :-
(1) Permanent employees who get fixed monthly wages.
(2) Permanent piece-raters, whose wages depend upon the production.
(3) Badli workmen.
14. Evidently no question of payment of compensation to the first category of workmen arises, because they are paid fixed monthly wages. It is only in the case of piece-raters whose wages vary according to the amount of production that this question assumes importance. The employers contend that according to S. 16 of the standing orders, the company may, at any time or times, in the event of a fire, catastrophe, breakdown of machinery, or stoppage of the power-supply, epidemic, civil commotion or other cause, beyond the control of the company, stop any machine or machines or department or departments wholly or partially for any period or periods, without notice and without compensation in lieu of notice. It is also provided further that the stoppage of machine during working hours for any of the causes mentioned above will be duly notified by the management and if the stoppage continues for more than one hour and the parties are detained for a period exceeding an hour the parties so detained shall be entitled to receive wages for the whole of the time during which they are detained in the mills as the result of stoppage. In the case of piece-raters the average daily earnings for the previous month shall be taken to be the daily wages. The management have also referred to an agreement dated 9 April 1956 Ex. W.1.A., whereby the parties agreed that if the work were to stop for more than four hours, compensation will be paid to the workers. The workmen admit these facts but urge that the agreement cannot operate to alter the provisions of the stained orders which are duly certified by the Government. I accept the argument that when, for reasons which are beyond the control of the company, the company is bound to pay compensation to the employees according to Art. 16 of the standing orders, if the work were to stop for more than one hour, it is much more incumbent upon the management to pay compensation to the employees when the stoppage of work takes place due to reasons which are within the control of the management. The workmen have alleged that the production suffers for various causes, e.g., for shortage of materials and want of sized beams, etc. Relying on the ruling in 1957 - II L.L.J. 151, the workmen argue that when the piece-rate wages of weavers are standardized and where through no fault of theirs they are not able to earn their standard wages every day they should be compensated for loss in their wages. On behalf of the management it is pointed out that there are some inherent difficulties in the manufacturing process which cause delay. For example. replacement of beam takes two to three hours; the non-supply of back-process is due to the absenteeism for which they cannot be held responsible. But this question of compensation has been successfully met by the employers who have produced their books and pointed out entries which go to prove that compensation is being paid to the workmen. The workers have not been able to show even case where compensation has not been paid. During the course of arguments Mr. M. I. K. Qureshi, general secretary of the Dewan Bahadur Ramgopal Mills Workers' Union, admitted before me that workers who are permanent piece-raters get compensation but he complained that badli workers to do not get any compensation for involuntary unemployment on the same lines. Mr. Arjun Rao, who also appears on behalf of a section of the Dewan Bahadur Ramgopal Mills employees, has admitted the correctness of this fact. In the light of these admissions I conclude that piece-rate workers are getting compensation for involuntary unemployment. However, I agree that badli workers, whenever employed, should be treated on a par with the piece-raters and they should also be paid compensation on the same lines. Issue decided accordingly.Issue (3) - Helpers in slubbing and intertenters.
15. As all the issues under reference have been decided above, this constitutes my award which may be duly published in the gazette.