K. Sukumaran, J.
1. Malayalam Plantations (India) Ltd., true to its name, owns many estates in the State of Kerala. Kaliyar Estate, Thodupuzha, in Idukki district is one among them. That estate has an extensive area under rubber, and a number of trade unions - respondents 1 to 8. Understandably therefore, there were labour struggles, and settlements thereof, from time to time-including agitations described as 'piston struggle' and 'loan struggle' of 1975 and 1978. A comprehensive settlement of the issues appears to have been reached between the management and the labour in the year 1980.
2. By about the middle of 1982, activities of the various Unions were intensified. According to the Unions represented by respondents 1 to 6, the Unions represented by respondents 7 and 8 'belong to Naxalite Groups'. These two Unions presented a charter of demands Ext.P-1 on 20th September, 1982. The Management gave a prompt reply on the same day, stressing in particular the vague and general character of some of the demands and explaining their stand in relation to the demands so raised. Following that, there was a conference on 4th October, 1982. In riie wake of that conference, respondents 7 and 8 addressed a communication Ext.P-3 on 6th October, 1982 intimating the Management, among others, that no hasty action would be taken by them. Discussions on the demands on a bilateral basis and at the level of the Labour Department were sought for thereunder.
3. It was then the turn of the six unions (affiliated to the I.N.T.U.C, C.I.T.U., A.I.T.U.C., Swathanthra Thozhilali union (Muslim League), 35 K.T.U.C. (Kerala Congress) and B.M.S.) to publish a joint statement Ext.P 4, which pointed an accusing finger to respondents 7 and 8 alleging that respondents 7 and 8 were adopting tactics disruptive of the workers' unity. The statement requested them to abandon such an arrogant and negative attitude and to develop an agitation and struggle on the basis of the unity of all the workers. A meeting of the combined general body of the workers was scheduled to be held at 3 p.m. on 11th October, 1982 near the factory. A public meeting was also planned in the Kaliyar Town at 5 p.m. on that day. There appears to have been a discussion between the unions and Management on 13th October, 1982 (See Ext.P 6 where there is a reference to such discussions on that day between the Management and six Unions). On 15th October, 1982, Ext.P-5 charter of demands was presented to the Management. Fifteen demands were enumerated therein. The notice Ext.P-5 exhorted the workers to participate in the torchlight procession which was to start at 7 p.m. from near the factory gate and to join the 'mass dharna' proposed to be held at 3 p.m. at the office gate. The Management sent a letter on the very same day (Ext. P-6). Therein, inter alia, it was stated by the Management:
In the cordial discussions I had with your representatives on 13th instant you had not raised these demands.
A reply point by point in respect of every demand was also thereafter given. The letter concluded by expressing:
I hope that good sense will prevail and that your Unions will act in a responsible manner to the mutual benefit of Management and Labour.
Responsibility was sought to be cast on the Unions, in the eventuality of there being any strike.
4. In the mean time, the six Unions called upon the workers to have a token strike on 1st November, 1982. Respondents 7 and 8 felt that it was their duty to explain their stand in relation to the 'lightning strike' scheduled on 1st November, 1982. According to them, there was absolutely no justification for such a strike, even before the expiry of days of the submission of the charter of demands. There was no adequate time either for the Management or for the Labour Department to study the demands or discuss the problems. Respondents 7 and 8 therefore called upon the other Unions to postpone the token strike fixed on 1st November, 1982. If, however, the other Unions insisted on precipitating a strike on 1st November, 1982, respondents 7 and 8 would not participate therein. It concluded the statement:
A struggle is never a fun; in any event, we are not for this fun.
5. it appears that the Management had invited all the Unions for discussion. The Unions represented by respondents 1 to 6 objected to the presence and participation of respondents 7 and 8. There were unproductive discussions on 29th October, 1982. Respondents 1 to 6 took a rigid stand to go ahead with the strike.
6. The token strike was launched by respon-1 to 6 on 1st November, 1982 as decided upon by them earlier. The Management reacted to this by calling for the explanation of the workmen, in relation to a proposal for deduction of 8 days wages from those who had struck work on 1st November, 1982. It was stated that in striking work on 1st November, 1982 without reasonable cause, Standing Order No. 21 had been violated. The deduction was proposed under Section 9 of the Payment of Wages Act, 1936 read with Standing Order No. 21. The workers did not submit any explanation. The Unions gave an explanation which according to the Management, was not satisfactory or acceptable. Under Ext.P8 dated 24th November, 1982, the Management notified the workers about the decision 'to deduct 4 days wages from the earnings for November December, 1982 period, from those workers who participated in the strike on 1st November, 1982.'
7. The situation in the estate deteriorated steadily thereafter. Normal working of the estate became extremely difficult if not impossible, going 50 by the materials available in the case including the Government files leading to the Government orders referred to hereafter. According to a communication addressed by the Joint Labour Commissioner dated 9th June, 1983:
Immediately a situation developed and there were incidents of lawlessness, obstruction to tractors etc.
According to the Management, 'at a conference held by the District Labour Officer in his office on 2nd November, 1982, one union representative manhandled the Manager and threatened him with dire consequences if he was not prepared to come to a settlement on their terms.' (See Ext.P-9). The version of the District Labour Officer on that incident is given in the counter-affidavit by extracting a passage from a letter despatched by the District Labour Officer to the Labour Commissioner. It reads:
The Manager and the Assistant Manager accordingly started to go outside the conference hall, the Manager being on the front side and the Assistant Manager behind the former. Suddenly one Mr. Onachan, Kanakkattu who was representing the INTUC (A) caught hold of the right hand of the Manager saying that he will not allow the Manager to go next time, if the settlement is not signed in the next conference. Immediately I asked Mr. Onachan to stop this unpolite way of approach in the conciliation hall and suddenly he obliged. The Manager and the Assistant Manager then went away. Everything was over within less than one minute.
The Management would contend that there was picketing of the office on 23rd December, 1982 and obstruction to the opening of the office. The factory staff were prevented from entering the stores, packing shed and the smoke house. A division conductor was surrounded and was pressed to remove a notice which had been published earlier by the Management (under which the Management offerea to pay wages only with the deduction of 4 days wages as indicated earlier). The Division Conductor refusing to accede to their demand, the workers themselves tore off the notice from the notice board. Operation of the contractor's lorries was also prevented thus blocking the movement of goods. A conference was held on 13th December, 1982 by the Additional Labour Commissioner at Trivandrum. Suggestions for restoration of the normalcy in the estate were made by him. A further meeting was fixed on 20th January, 1983. Ugly incidents according to the Management happened on 30th December, 1982. The members of the staff were prevented from taking out the money required for disbursement of wages. The new year dawned with the intensification of the activities by the workmen. According to the Management, the workers picketed the office and obstructed the vehicles engaged in the collection of latex and scrap on 1st January, 1983. Other items of work were also interfered with. According to the Management:
The staff were prevented from entering the factory and the office thus making it impossible for normal work to be done.
The unsatisfactory situation continued even on the 3rd and 4th January, 1983. The deteriorating situation is reflected by a letter sent by the Circle Inspector to the Manager on 5th January, 1983 whereunder the Management was requested not to offer the lesser amount as the balance of wages to the workmen. It was suggested that the office could be opened only after 11 a.m. on that day. Though a conference was held by the Additional Labour Commissioner on 20th January, 1983, no settlement was possible.
8. According to the Management, the incidents of 21st January, 1983 were even worse. The incidents are stated in the following words in Ext.P 9:
On the afternoon of 21st January, 1983 about 40 workers obstructed the Manager from getting into the office by closing the gate and surrounding him. He was pulled off the motor-cycle and beaten with sticks, hands and slapped with chappals. Stones were pelted at him. They were shouting to kill him. One worker lifted a big stone and aimed at his head and he barely escaped being killed because he got pushed away by, in the melee.
One staff member was also assaulted very badly.
The workers have openly threatened that they would murder the Manager and some staff members and destroy estate property. They threatened to set fire to the contractor's lorry which had arrived at the estate for collecting load.
9. According to the Management, they were constrained by the incidents referred to above, to issue Ext.P 9 notice informing the workers that 'the estate is locked out with effect from 5 p.m. on 22nd January, 1983 until such time as normalcy is restored. According to the Management, in the light of the happenings on the estate and the open threats of violence and murder it had become impossible for them to carry on the administration of the estate. A grave danger to the lives of the estate personnel and property existed rendering it impossible for the Manager to administer the estate in the normal manner.
10. When the situation became so grave, even the Minister for Labour intervened. A conference was held by him on 28th January, 1983. That too was unproductive of results. Further conferences were held on 2nd March, 1983,28th March, 1983, 3rd June, 1983 and 8th June, 1983. Settlement was out of sight even after these conferences. The Management insisted that the '4 days wage cut' was in accordance with the Standing Orders and therefore could not be revoked. They were prepared to lift the lock out if the Unions assured that the normalcy would be restored. The Unions on the other hand wanted a restoration of the wages cut and withdrawal of disciplinary proceedings initiated in the meanwhile, as a first step for the settlement. At the conference of 2nd March, 1983, the Management was prepared to pay 31/2 days wages as advance, pending the settlement of the issue. These and other facts are disclosed in the letter of the Joint Labour Commissioner of 9th June, 1983 addressed to the Special Secretary to Government, Labour Department.
11. On 9th June, 1983, on the basis of the above letter of the Joint Labour Commissioner, swift action appears to have been taken at the Government level. On the very day the joint Labour Commissioner submitted the reports, the Labour Commissioner passed them all to the Government. The papers were received in the afternoon on the same day, in the Secretariat. In accordance with the recommendation of the Joint Labour Commissioner, the Government passed orders on the very same day, by which the industrial dispute was referred for adjudication, to the Labour Court, Ernakulam. Ext.P 10 is the rt'lereiu'c to the adjudication. The issues referred are:
(1) Justifiability of four days wage cut effected during the month of November, 1982 and (2) Justifiability of lock-out with effect from 22nd January, 1983 and wages for the lockout period.
The Government file does not indicate as to when the communications were despatched to the various addresses.
12. According to the petitioner, they received the order Ext.P-10 only on 11th June, 1983.
13. Even before the reference order was so received by the Management, further brisk action was pursued by the Labour Department. On 10th June, 1983, a communication from the Labour Commissioner (and signed by some person on his behalf) was sent to the Government. It referred to the Government's order of reference Ext.P 10. It continued:
Despite the reference of the issue for adjudication the lock-out is still continuing. I therefore request the Government to prohibit the continuance of lock-out of the said estate as per Section 10(3) of the Industrial Disputes Act, 1947.1 enclose herewith a draft Notification for favour of necessary action.
Immediately on receipt of the letter, quick processing took place in the secretariat. The proposal of the Labour Commissioner was accepted and orders prohibiting the continuance of the lock-out was issued on the very same day. Even the Gazette extraordinary was published with the date 10th June, 1983. The explanatory note is somewhat significant. It reads:
As per G.O. Rt. No. 638/83/LBE dated 9th June, 1983 the Industrial Dispute in Kaliyar Estate was referred for adjudication. The Management has not withdrawn the lockout. As such in order to maintain industrial peace it is found necessary to prohibit the lock-out in the establishment. Hence this notification.
14. According to the Management, Ext.P-11 was sent by a special messenger along with a covering letter of the Regional Labour Commissioner dated 17th June, 1983 and was received by the Management at 4 p.m. on 17th June, 1983.
15. Even before the Management had received 45 Ext.P-11, further swift action was taken in respect of another matter too. Yet another communication dated 10th June, 1983 from the Labour Commissioner (and signed by some person on his behalf) was sent by him to the Special Secretary of the Labour Department. The letter was received in the Secretariat at 2.40 p.m. A reference was made in the above communication about the facts leading to the reference of the dispute for adjudication. The letter continued: -
As there is unrest among the workmen who are in severe distress I suggest that a direction under Section 10-B of the Industrial Disputes Act, 1947, requiring the employer of the said estate to pay each worker an amount equivalent to 4 days wages immediately.
I enclose herewith draft notification for the purpose.
In pursuance to the above letter, an order under Section 10-B was issued on 16th June, 1983. It is produced in the writ petition as Ext.P-12. Thereunder, the Government exercising the power under Section 10-B of the Act. (S. 10-B is the result of a Kerala amendment of the Industrial Disputes Act). ordered that the workmen involved in the adjudication 'be paid by the employer, on the reopening of the said establishment, an amount equivalent to four days' wages over and above their usual wages, as an advance to be adjusted/recovered subject to the award of the Labour Court'. The explanatory note to that notification reads: -
Government in G.O. (Rt) No. 638/83/LBR dated 9th June, 1983 has referred the Industrial Dispute between the Management and workers of Kaliyar Estate for adjudication to the Labour Court, Ernakulam and also issued orders prohibiting the continuance of lock-out in the said Estate as per G.O. (Rt) No. 673/83/LBR dated 10th June, 1983 under Section 10(3) of the said Act. Government after . due enquiries are satisfied that it is necessary to take provision for payment of some financial assistance to the workmen of the said Estate for maintaining industrial peace in the establishment. Hence this notification.
According to the Management, the communication was sent by a special messenger on 20th June, 1983.
16. The Management then approached this Court by this writ petition filed on 22nd June, 1983. The main prayer was the quashing of Exts.P-11 and P-12. A declaration that Section 10-B of the Act as unconstitutional was also prayed for. Along with the writ petition, a in interim prayer for staying the operation of Ext.P-12 was sought for.
17. My learned brother Justice Chandrasekhar Menon heard the arguments on the stay petition but declined the interim relief. The material portion of the order reads:
I do not think I should grant an interim stay as prayed for. Any amount paid consequent on. Ext.P-12 would only be subject to the final result in the O.P. It is made clear that the payment would be without prejudice to the contentions that the petitioners have raised. The petitioners' apprehension is that a breach of peace may occur or some criminal offence likely to be committed. I am sure the State would see to it that no such situation occurs then. It is the duty of the police to prevent any disturbance to law and order and I do not think they will not act in accordance with law. Post on 5th July, 1983. Counter, if any, before 1st July, 1983.
18. The Estate appears to have been reopened thereafter. The writ petition was not heard on 5th July, 1983 or soon thereafter. Counter-affidavit on behalf of the workmen was filed on 4th July, 1983 and the Government filed its counter-affidavit on 5th July, 1983.
19. Though the writ petition as originally filed contained the above prayers, Counsel for the writ petitioner, directed his arguments mainly against the validity of Exts.P-11 and P-12. In that view of the matter, it has become unnecessary to consider the question about the constitutional validity of Section 10-B of the Act.
20. Ext. P-11 is attacked mainly on the ground that that has been passed in violation of the principles of natural justice. The Management was not given opportunity to explain its stand in relation to the circumstances which led to the 'lock-out'. There has been a non-application of the mind to the relevant aspects before Ext. P-l 1 was passed. According to them, even before the reference order Ext.P-10 was communicated to the Management, the order Ext.P-11 was passed on the basis of unjustified factual assumptions and unmindful of legal requirements. The legal contention is sought to be supported by reference to the decision of this Court in A.K. Kaliappa Chettiar & Sons v. State of Kerala 1970-1 L.L.J. 97. Reference was made to other decisions, including those rendered by the Supreme Court which have a bearing on that aspect.
21. In relation to Ext.P-12, it was contended that the requirements of Section 10-B had not been satisfied. It is pointed out that the dispute referred for adjudication was the deduction of 4 days wages and the justifiability of lock-out. Under Ext.P-12, the Government directed payment of wages for the same 4 days, by way of interim relief. It was therefore contended that Ext.P-12 would never be an order under Section 10-B. The decision in M.K. Mills v. State of Rajasthan AIR 1955 Rajasthan 188, was relied on in that connection. It was pointed out that Ext.P-12 is a mala fide action and not a proper exercise of power under Section 10-B. A condition precedent for the exercise of power under that section is absent in the case, according to the Management. Ground D expresses the contention of the petitioner in the following terms:
If the Government wanted the employer to give financial assistance the Government could have directed the Management to pay any specified amount as recoverable advance. That also has not been done in this case.
22. On behalf of the Unions it was submitted that the decision of this Court in A.K. Kaliappa Chettiar & Sons v. State of Kerala case (supra) in relation to the observance of the principles of natural justice while exercising the power under Section 10(3) (prohibiting the lock-out) requires reconsideration. The decision of the Rajasthan High Court on which the writ petitioner relied on, was distinguishable, according to them.
23. According to the Government, 'the provisions of the Industrial Disputes Act do not stipulate that there should be an interval between an order under Section 10(1)(c) of the Industrial Disputes Act and Anr. order under Section 10(3) of the Industrial Disputes Act.' As regards the contention 40 relating to the requirement of natural justice before issuing an order like Ext.P-11, the stand of the Government is expressed by the following sentence in its counter-affidavit, though the decision of this Court in A.K. Kaliappa Chettiar's case (supra) had not been adverted to or considered by the Joint Labour Commissioner, the Labour Commissioner, or by any officer in the Secretariat:
It is not at all necessary to give an opportunity to the petitioner by Government before issuing the order as the said order was issued only as a last resort as all other efforts to strike an agreement did not succeed. It is respectfully submitted that natural justice does not contemplate that in each and every case a hearing must be given.
24. Ext.P-12 is sought to be justified as a direction ordering payment of an advance equivalent to 4 days wages. It was pointed out that the Management had expressed its preparedness to pay 32 days wages as advance, in the conference held on 2nd March, 1983. According to the counter-affidavit:
Government are fully competent to issue an order under Section 10-B of the Industrial Disputes Act if it is expedient to do so for securing industrial peace in the establishment and secure payment of advance by the employer to the workmen who were in utter distress owing to the indefinite lock-out declared by the Management.
25. I shall now consider the two principal contentions urged on behalf of the writ petitioner, in the light of the submissions made on behalf of the Unions and the stand taken on behalf of the Government.
26. Before specifically dealing with the above contentions, a reference may be made to the contention urged on behalf of the petitioners that what was effected under Ext.P-9 notice was only a closure of the Estate and not a lock-out as that term is to be correctly and legally understood. The term 'lock-out' has received judicial inter pretation in different jurisdictions and even in different contexts. Way back in 1897, in Richardson and Samuel and Co. in Re., case (66 Law Journal Reports, Q.B. 868 at p. 873) that term, along with the contrasting one ot 'strike' occuring in a charter party was commented upon. It was observed that 'strikes' and iock-outs' in the exceptions in the charter party have their ordinary meaning, and apply to labour disputes,' and the fact that a factory 'did not keep its men at work because it had no work for them to do is neither a strike nor a lock-out'. McMillan, J. of the High Court at Australia observed in The W.A. Supply Co. Ltd. v. the Registrar of Friendly Societies, case (1904) 6 W.A.I..R. 108:
A strike may be defined as a refusal by the workers to continue to work for their employer unless he will give them more wages or better conditions of labour; a lockout is the converse of a strike; it is the refusal by an employer to allow his workmen to work unless they will accept his rate of wages or the conditions of labour he imposes. In neither case is the employment finally determined, the intention of the workmen in the one case and of the employer in the other being that the employment should be continued as soon as a satisfactory settlement of the matter in dispute can be arrived at.
These observations were adopted in the later case in Amalgamated Society of Engineers (Perth Branch) v. Millers' Kerri & Jarrah Co (1907) 9 15 W.A.L.R. 207. The necessity to construe the definition of 'lock-out' having regard to the background of the industrial relations was emphasised by the Supreme Court in Feroz Din v. State of West Bengal 1960-1L. L. J. 244. The Court held in that case that the discharge of employees by an employer does not amount to a lock-out. And proceeded to emphasise: 'to construe the definition as including a discharge would be against the entire tenor of the Act and also against the meaning of a lock-out as understood in industrial relations'. Instances of such lock-out are borne out by judicial decisions, such as Shree Amarsinhji Mills Ltd. v. Nagrashna and Ors. 1961-1 L.L.J. 581 and Northern Deoars Tea Co. v. Workmen of Dam Dima Tea Estate 1964-1 L.L.J. 436. The classic decision on the question may perhaps be Kairbetta Estate v. Rajamanickam and Ors 1960-11 L.L.J. 275. Of particular relevance is the passage occurring at page 278 of the reports. After noting the definition of that term in Section 2(l) of the Industrial Disputes Act, 1947 and the changes in the definition of that term the Trade Disputes Act, 1929 the Supreme Court observed:
Even so, the essential character of a lock-out continues to be substantially the same. Lockout can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coersive process the employees to see his point of view and to accept his demands. In the struggle between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lock-out available to the employer and can be used by him. The use of both the weapons by the respective parties, must, however, be subject of (he relevant provisions of the Act.
It is unnecessary and even undesirable to express any view on the contention now urged by the management on this aspect. The Labour Court is in seisin of the industrial dispute which would involve a decision of the above question.
27. As notea earlier, Ext. P-11 is attacked on the ground that it was passed in violation of the principles of natural justice. The contention has to be upheld, in the light of the decision of this Court where M.U. Issac dealt with the question clearly and forcibly (See A.K. Kaliappa Chettiar & Sons v. State of Kerala case, (supra)). On behalf of the respondent-Unions it was urged that the decision did not lay down the correct law and that it required reconsideration, particularly in the light of the decisions of the Delhi High Court in Keventers Karamchari Sangh v. Governor, Delhi 1971-11 L.LJ. 375 and of the Andhra Pradesh High Court in Eenadu Press Workers Union v. Government of Andhra Pradesh 1979-1 L.L.J. 391.
28. It is desirable to start the discussion on that topic by a reference to the section Section 10(3) the power under which had been invoked for issuing the impugned order. The section runs as follows:
Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.
It may be noted that the Government is empowered to prohibit, in the circumstances, dealt with therein, a strike and lock-out. Both weapons one in the hand of the labour and the other in the hand of the management are treated alike. The legislature has not intended any distinction between them. One cannot, therefore, be distinguished from the other in relation to the back- ground and the context in which the power has to be exercised under that section. What is good for the goose must be good for the gander too. The application and interpretation of the selfsame section cannot have different manifestation or effect depending on the subject-matter the prohibition of strike on the one hand and the lock-out on the other. That approach, I conceive, is essential for a proper working out of the industrial democracy, for which the enactment - the Industrial Disputes Act, 1947 - and Ors. of its nature, strive for.
29. As noted already, strike is an important right of the workmen. So too must be its antithesis - the lock-out - as regards the management. Strike has been referred to by the Supreme Court in Delhi Administration v. Workmen, Edward Eventen 1978-11 L.L.J. 209 as a 'basic right. Any prohibition or restriction on the exercise of such a legitimate right will certainly involve adverse civil consequences. Whatever be the process - quasi - judicial or administrative - by which the right is affected, the impairment of such a right involves indubitably adverse civil consequences as visualised in Binapani's case : (1967)IILLJ266SC . The principles of natural justice must necessarily be observed in such a situation. This general proposition, of course, is subject to exception in extreme cases. It is futile to add to the discussion on that question as contained in Maneka Gandhi v. Union of India AIR 1978 SC 25 597. It must, however, be emphasised that the exclusion of the principles of natural justice could be implied if only the right to be heard in given situations will have the effect of paralysing the administrative process, or if the situation so demands such an urgency or if there be need for such a promptitude in relation to the action. Existence of such circumstances cannot be easily assumed. Being circumstances of an exceptional nature, such circumstances will have to be cogently established with reference to concrete facts and specific factors. A mere difficulty or a short delay involved in the observation of the principles of natural justice will not by itself give a ready excuse for violating those principles. That was the view expressed in R. V. Havering Justices, ex parte smith, case (1974)3 All ER 484 at p. 488. The learned Judge observed:
Of course, I recognise that practical difficulties arise - But while recognising that may create great practical difficulties for local authorities seeking to operate these provisions I am quite unable to accept that even if the difficulties render the machinery of this legislation virtually useless, that affords any ground for this Court to say that the provisions should therefore be construed in derogation from the elementary principles of natural justice.
There are similar observations of the Supreme Court in the decision in The Board of High School & Intermediate Education, U.P. v. Chitra : 3SCR266 , such as:
Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law.
On the basis of principles and precedents, I am clearly of the view that the earlier decision of this Court in Kaliappa Chettiar's case, (supra) is sound in law.
30. The manner in which the principles of natural justice will have to be observed in a given situation would doubtless be dependant upon the attendant circumstances. Thus, for example, if immediate action is called for in respect of an essential service, such as water supply or hospital, elaborated opportunity with a sufficiently long time for submission of representations and a full-fledged collection of evidence and hearing of arguments, would not be possible or desirable. There may even be circumstances where notice may have to be altogether dispensed with. It is unnecessary to be dogmatic about the possible situations of such exceptional nature. However, as noted above, it has always to be borne in mind that the existence of exceptional circumstances has to be clearly made out by abundance of acceptable materials.
31. The decision of the Delhi High Court, referred to by Counsel in Keventers Karamchari Sangh's case 1971-11 L.L.J. 375 cannot be accepted as good law in view of the decision of the Supreme Court in Delhi Administration's case, (supra) which has not approved of that decision. The Supreme Court observed that the ratio of the Delhi decision in Keventers Karamchari Sangh's case, (supra) was contrary to the later ruling of the same High Court which was subject-matter of the appeal in Delhi Administration's case, (supra); and the learned Judges of the Supreme Court observed that they were inclined to adopt the reasoning of the Judgment under appeal.
32. The Division Bench of the Andhra Pradesh High Court has observed that the Kerala decision was clearly distinguishable on the ground that it related to the case of lock-out. No doubt, earlier, it expressed dissent from the view taken by the Kerala High Court. One reason urged for the view so taken by the Andhra Pradesh High Court is that that 'unlike the right to strike, the right to closure of business is a fundamental right.' Whether this distinction is well-founded, need not be considered for the purpose of our -5 case. At the risk of repetition it may, however, be noted that the right to strike and the right to lock-out have been recognised, time and again by judicial decisions, as powerful weapons in the armory of the labour and of the management, (i) exercised in the vindication of their respective interests. In order to attract the concept of adverse, civil consequences arising,' it is not necessary that the right into which an incursion is made, must be a, fundamental right. If any legal right is sought to be interfered with, the situation will be one where adverse civil consequences visit the person whose legal right is so interfered with. The analogy of the reasoning of the Andhra Pradesh High Court which underlines a reference to the industrial dispute in Section 12(5) is, with respect, inapplicable. By a mere referring of a dispute for adjudication, no adverse civil consequences arise. That is not necessarily the position as regards the exercise of a legitimate weapon in the hand of the management or of the labour, in the vindication of their respective rights in industrial relations.
33. I would, therefore, apply the principles of Kaliappa Chettiar's case, (supra) to the facts of the present case. It is not pretended that any opportunity to be heard was given to the management before the impugned order was passed. As noted earlier, even before the order dated 9th June, 1983 (Ext.P-10) referring the dispute for adjudication was received by the management, the impugned order had been passed. The situation was not one in which an opportunity to be heard could be totally denied. The notice of closing down the Estate was published under Ext.P-9 on 22nd January, 1983. There was no case whatever that the management had been in any way evading any of the conferences or discussions convened by the officials of the Labour Department at the different levels. Hardly any ground exists, therefore, for making a case of an exceptional circumstances so as to exclude the observance of the principles of natural justice. Ext.P-11 is thus vitiated by a violation of the principles of natural justice. It is to be quashed, accordingly.
34. The above conclusion obviates the necessity for a consideration of an alternate submission urged on behalf of the petitioner. It was pointed out that the charter of demands cover a large number of issues. What was ultimately referred under Ext.P-10 were only two issues. And those issues - deduction of wages for four days and the justifiability of lock-out - originated subsequent 'to the submission of the comprehensive charter of demands under Ext.P-5. When there are numerous demands in respect of which negotiations or conciliations have to be made under the machinery of the Industrial Disputes Act, could it be $aid that the reference of two such issues would justify a prohibition of a strike or lockout? The answer would appear to be an emphatic negative, in the light of the decision of the Supreme Court in Delhi Administration's case (supra). The ingredients of Section 10(3) have been analysed by Krishna Iyer, J. who spoke for the Court. (The report contains a printer's devil while referring to Section 10(3); the reference to section is wrongly given as 19 instead of 10. This mistake has been carried further in the heading of the head-note and the text of it; it is astonishing that such a mistake happened in the Labour Law Journal). The Supreme Court observed:
Imagine twenty good grounds of dispute being raised in a charter of demands by the workmen and the appropriate Government unilaterally and subjectively deciding against the workmen on nineteen of them and referring only one for adjudication, how can this result in the anomalous situation of the workmen being deprived of their basic right to go on strike in support of those nineteen demands. This would be productive not of industrial peace, which is the object of the industrial peace, which is the object of the Industrial Disputes Act but counterproductive of such a purpose. If Government feels that it should prohibit a strike under Section 10(3) it must give scope for the merits bf such a dispute of demand being gone into by some other adjudicatory body by making a reference of all those demands under Section 10(1) as disputes. In regard to such disputes as are 45 not referred under Section 10(1), Section 10(3), cannot operate. This stands to reason and justice and a demand which is suppressed by a prohibitory order and is not allowed to be ventilated for adjudication before a Tribunal will explode into industrial unrest and run contrary to the policy of industrial jurisprudence.
Thus, on principle and the text of the law, we are convinced that Section 10(3) comes into play when the basis of the strike is covered by Section 10(1). Reference of a dispute and prohibition of a strike on other demands is im-permissable.
35. It is, however, unnecessary to express a definite view on that topic or on the decision of the Kajasthan High Court in M.K. Mills v. State of Rajasthan (supra) on which also reliance was placed by counsel for the petitioner. There is considerable force in this alternate submissions also.
36. The Government files disclose that soon after the receipt of the communication dated 10th June, 1983 from the Labour Commissioner, (it is not sent by the Labour Commissioner himself but some other person whose identity is not disclosed) at 2.40 p.m. On that day the Secretariat put up a note seeking orders on the matter. The Deputy Secretary suggested the issue of the notification prohibiting the lock-out and that was endorsed by the Secretary, all on the same day. The Minister-in-charge of the Department does not appear to have seen this file. No arguments had been advanced about the inefficacy of the order on the basis of the rules of business. It must, however, be pointed out the manner in which such a serious action had been taken does not indicate a proper application of mind. Action appears to have been taken without advertence to all relevant aspects, which should necessarily by considered, before such a drastic action like a prohibition under Section 10(3) is resorted to. Ext.P-11 would be liable to be struck down on that ground as well.
37. The next attack is on Ext.P-12. Under that the Government granted an interim relief of four days' wages to the workmen. The section Section 10-B - under such interim relief is to be given refers to the factors as follows:.for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or industrial peace in the establishment concerning which such reference has been made....
Apparently the justification for the grant of interim relief as disclosed from the counter-affidavit of the Government is the maintenance of industrial peace. It is stated that there was unrest among 50 the workmen who were in severe distress as a result of the prolonged lock-out from 22nd January, 1983. I am unable to accept this justification attempted in the counter-affidavit. The grant of lour days' wages, will not in any way alleviate the distress of the workmen, who were exposed to the hardship, arising out of the lockout from 20th January, 1983. It is not a case where some ready cash was being made available for immediate purposes. As stated by the petitioners, the workmen were to receive, soon on the reopening of the Estate, wages which had remained unpaid to them. The hardship arising out of the loss of wages for six months will not be in any way alleviated by four days' wages. The significance of the four days' wages is very transparent from an over-all view of the events. It must be noted that in the conferences, the Management was prepared to even pay 3Va days' wages pending a settlement. That offer was spurned down by the Unions. One could have understood if, in an order under Section 10-B, wages of a substantial period, say of a month, were directed to be paid in addition to wages due to the workmen, subject to adjustments in the ultimate award or otherwise. That was not what was done. A specific grant of lour days' wages was a mere lace-saving device in relation to the striking Unions. It appears that to all intents and purposes, the idea behind the grant was only to create a feeling that the Management's action in deducting four days' wages has been set at naught by the Government. That is not a fair or legal or proper attitude when the very same issue is to be heard by the Labour Court. Interim relief has to be granted in accordance with well-settled principles laid down in that behalf. (See 1959-11 L.L.J. 544 and 1960-11 L.L.J. 712], An interim relief shall not ordinarily exceed what could be granted ultimately by a Tribunal or a Labour Court. In the context of reference of the justifiability of the deduction of four days' wages a relief under Section 10-B by way of grant of four days' wages, is not an action in furtherance of the objectives of Section 10-B of the Act. The action is unrelated to the objective behind the section. It has been prompted by factors extraneous to the exercise of the power under Section 10-B. Kxt.P-12 is liable to be quashed on that ground.
38. In the course of the hearing, yet another serious infirmity in relation to Ext.P-12 was disclosed. As noted earlier, action in relation to Ext.P-12 was also taken by a communication sent on behalf of the Labour Commissioner on 10th June, 1983 and which reached the Secretariat at 2.40 p.m. The note files disclose that action was sought on the above proposal. It contains among other things a sentence reading: 'The file may be circulated to M(L) for perusal and orders.' (M)L represents the Minister for Labour. There after, the Deputy Secretary posed the issue and sought orders, by his note made on the same day. The Special Secretary only signed the same. He suggested no orders. Ultimately the Minister signed it but without issuing or indicating any orders. By an act of Supreme forgetfulness as it were, orders had not been really passed on the proposals. However, thereafter the Department proceeded on the basis that there were orders. Ultimately Ext.P-12 was issued. The Government Pleader to whose notice these facts were brought, could not satisfactorily explain the absence of any specific order by any person competent to issue the orders. The order Ext.P-12 is liable to be quashed also for the ground of non-application of mind in the above circumstances.
39. The result of the above discussion is to allow the writ petition in relation to the prayers relating to the quashing at Exts.P-11 and P-12 passed by the 1st respondent.
40. A quashing of Ext.P-11 notification prohibiting the lock-out and Ext.P-12 directing payment of wages can have the effect of enabling the Management to revert to the position as it obtained when those invalid orders were pronounced. That may in turn mean a resumption of the closure of Estate and a recovery of the four days' wages paid in pursuance to Ext.P-12. In as such as the Estate has been working without any serious untoward incidents so far, the Management may not be interested to resume the closure of the Estate. In a sense, it is unnecessary, and even disadvantageous to it, to do so. It is to be hoped that the petitioner will be satisifed with the vindication of its position. So too could be the case with reference to the recovery of the four days' wages, referred to in Ext.P-12. The amount has been already paid. The justifiability of the deduction is already pending before the Labour Court. Notwithstanding its legal victory, the Management could very well afford to hold back recovery proceedings till the decision of the Labour Court is rendered. That indeed would be a commendable gesture of goodwill on its part. It is to be hoped that the petitioner would adopt such an attitude, one which may be termed, in the circumstances, as an over generous one.
41. An oppression of space and time would dissuade the Court to make any general observations at the conclusion of this Judgment. It was not unusual for courts, at any rate in days gone by, to discuss the points arising and problems left behind by a case, at some length. Sir John Holt, C. J. devoted almost five times the space his companion Judges did in Coggs v. Bornard (1558-1774) All ER Rep. 1, decided in 1703 and concluded with the observation:
I have said thus much in this case, because it is of great consequence that the law should be settled in this point, but I do not know whether I may have settled it, or may not rather have unsettled it. However that may happen, I have stirred these points which wiser heads in time may settle.
There is then all the difference between 1703 in England and 1984 in India, even in attempting such a 'stirring of points.'
42. Murphy, J. while handing down the Judgment in The Queen v. Holmes; Ex. Parte Public Service Association (1977) 140 CLR 63 referred in general to the history of the industrial disputes after the commencement of the industrial revolution and observed that 'the emerging subject of industrial disputes is industrial democracy.' He referred to the work of Charles Livingston on Industry's Democratic Revolution. The Court of Appeal in England took note of a strike in Ro CB (a minor) (1981) I All ER 16 and observed there:..most tragically.....the Tower Hamlets Social Workers' strike began. It is not for this Court to make any comment on that, except to note its consequences.....
43. Karl Marx (who according to Lozovsky, the noted author of Marx and the Trade Unions) felt 'the pulse of the masses and 'knew how to speak to them at every given moment' wrote about the working class:
one element of success they possess - numbers: but numbers weigh only in the balance if united by combination and led by knowledge.
(See Trade Unions, selected readings, Edited by W.E.J. McCarthy) The prophetic words underlined appear to have a greater significance these days.
44. In a recent decision in the United States, Justice Powell expressed concern about the disturbing frequency of strikes in breach of contract and observed that 'in some cases, these strikes are encourgaged or even instigated by union leaders'. He referred to the article Wild cat strikes: The Unions Narrowing path to Rectitude? Ind. L.J. 472, 473 (1975) and the observations there as to how a strike rends the 'closely integrated supply and distribution systems' that a company has developed. The following observations of Justice Powell are particularly relevant in the present context:
Whatever the cause, strikes in breach of contract frequently injure all concerned: the employer, employees, and the public. Strikes and lock-outs by their nature squander human working capacity, the full use of which is essential to the enjoyment of the Nation's productive potential...........Labour, manage ment, and the public nevertheless share a common goal of uninterrupted production.
45. In England also, views have been expressed on this topic. Recently, L.J. Macfarlane in his book The Right to Strike stated:
The right to strike, like the right to vote may be misused.
Lord Denning employed stronger words. What he told an academic audience is referred to at page 184 of his book The Closing Chapter.
The greatest threat to the rule of law is posed today by the big trade unions. One of the biggest problem is now to restrain the misuse or abuse of power.
46. Express Newspapers Ltd. v. Mac Shane and Anr. (1980) 1 All ER 65 was a case where a strike caused difficulty to the patients in Charing Cross Hospital being treated for cancer. It was noted that those patients 'were brought to near death because industrial action had been taken to prevent fuel oil from being brought into the hospital ', which made the hospital 'intolerably cold when warmth was necessary in order to provide any chance of keeping the patients alive.' Those who were responsible for preventing the fuel from entering the hospital, claimed that in doing so, they were acting in furtherance of a trade dispute and as such immune from any local action on the basis of the statutory provision. Lord Salmon observed:
They may have been; but if this is the law, surely the time has come for it to be altered.
47. An academic sums up her impression about the trade union situation in the State of Kerala, in the following words:
In Kerala the available situation is that it is increasingly used by political parties, using it for their own advantage. Hence the just reasons for industrial strikes are fast disappearing.
('See the article' Industrial Strikes: An Analysis by K.M. Usha in 'The Academy Law Review', Volume VI, page 167 at 187).
48. It is not for this Court to undertake an evaluation of a situation which prevailed in the Estate of the petitioners for about six months, causing loss to the Management and suffering to the workmen. 'Who all have won? Hardly anyone. And who have all lost? Almost all', might possibly be the questions and answers. For a student of Trade Union History and Industrial Jurisprudence, this case may well serve an interesting case study in the modern trends of trade union functioning and the impact thereof on the society at large. Did proliferation of trade unions lead to an avoidable industrial strike? Was the Labour Department dynamic enough in solving a burning issue? What could possibly be the effective steps to checkmate such undesirable situations, at least in the future? All these questions emerging from the facts of the case may stir some thoughts - socially relevant and politically pertinent. If the case evokes such a meaningful study, that may, to some extent, compensate the agony the workmen suffered and the loss the management sustained.
49. If costs are to follow the event, the petitioners would be entitled to the same. I would, however, decline costs in the case. The petitioners will be content with the vindication of their stand.