1. The only question which we are called upon to answer in this petition filed by the petitioner-employer under Art. 227 of the Constitution of India is whether the Industrial Tribunal (hereinafter referred to as 'the Tribunal') was justified in directing the petitioner to pay full back wages for the period from August 8 to October 13, 1977 to 16 complainants who had filed complainants under S. 33A of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act').
2. Petitioner is an engineering establishment employing about 200 workmen. There were many industrial disputes between the petitioner and its workmen which were pending adjudication in the Tribunal. The workmen decided to go on strike notice dated July 5, 1977, in which it was stated that the workmen would go on strike with effect from July 26, 1977. The workmen went on strike on July 26, 1977. The strike peaceful and practically all the workmen joined it. It is the case of the petitioner that after the workmen proceeded on strike, it placed a notice on the notice board calling upon the workmen to resume their duties. In the final notice, the workmen were called upon to resume their duties on August 6, 1977. The workmen decided to call off the strike and their union gave a notice dated August 6, 1977, informing the petitioner that their strike would be called off with effect from August 8, 1977. The workmen reported for duty on August 8, 1977. No workmen was, however, allowed to resume duty by the petitioner unless he gave a writing to the following effect :
I the undersigned do hereby state that at the instigation of some workmen I had joined the illegal strike of the workmen of the factory from July 26, 1977, I am sorry for the same.
I hereby given an undertaking that henceforth I will act peacefully and in disciplined manner and I shall not commit similar or any other misconduct. I request the company that taking this into consideration, I may be pardoned for my aforesaid misconduct. And the Company may impose any punishment on me and I shall not raise any objection in that regard.'
All the workman except 16 respondents who were complainants gave statements in aforesaid form on August 8, 1977 or subsequent thereto before they were permitted to resume their duties. The respondents, however, refused to give such statements and therefore, the petitioner did not permit them to resume their duties. After the conciliation proceedings failed, the respondents approached the Tribunal by filing complaint under S. 33A of the Act. It was alleged in the complaint that the action of the petitioner in refusing to permit the respondents to resume duty when they reported for duty on August 8, 1977 was illegal and that the petitioner be directed to reinstate them in service with full back wages.
3. In its written statement, the stand which was taken up by the petitioner was that services of the respondents were not terminated and therefor relationship of master and servant continued between the parties. Consequently it was submitted that there was no contravention of S. 33 which would justify filing of the complaint under S. 33A. It was contended that there was no contravention of S. 33 and therefore complaint under S. 33A was not maintainable. Petitioner its workmen were spending for adjudication before the Tribunal. It was, however, contended that the workmen had gone on illegal strike from July 26, 1977 with a view to pressuring the petitioner in acceding to their unreasonable demands. The petitioner, therefore, called upon its workmen to resume their duties as already stated above. According to the petitioner, the workmen who executed in writing as stated above were permitted to resume their duties. This writing, according to the petitioner, was in the nature of an apology for going on an illegal strike. Since the respondents were not ready to tender such apology they were not allowed to resume their duties. Petitioner thus in terms conceded that it was on account of the refusal on the part of the respondents to execute the writing of the nature referred to above that they were not allowed to resume their duties. It is further submitted that while the dispute was pending before the conciliation officer, that is, Assistant Commissioner of Labour, Ahmedabad, the petitioner had agreed not to insist upon the above writings being executed by the respondents and to take the respondents back on work subject to the petitioner's right to take disciplinary action against them for having resorted to illegal strike. This stand taken up by the petitioner clarifies the position that no action was taken against the respondents for their having resorted to illegal strike upto the date of filing of the rerun statement. Petitioner contends that the respondents were not only not willing to accept the condition about reserving its right to take disciplinary action, if any, against them, but insisted upon assurance that no disciplinary action would be taken against them for going on such strike. It was finally stated in the written statement that the petitioner has not terminated the services of the respondents, that they were on the muster roll of the petitioner and that they were free to report for duty whenever they chose to do so. It was submitted that if the respondents apologised for going on strike, the petitioner would not take any disciplinary actions against them, but if they did not apologise, the petitioner reserved its right to take disciplinary action against them.
4. During the pendency of the dispute before the Tribunal, petitioner agreed to take all the respondents (complainants) back in service and to place them in their original posts and allow them to perform duties which they were performing before going on strike. All the respondents were permitted to resume their duties with effect from October 14, 1977. It may be mentioned here that the written statement of the petitioner was filed on October 13, 1977, wherein, as pointed out above, it was stated that services of the respondents were not terminated and from the next day that is October 14, 1977, the respondents were allowed to resume their duties. Therefore, the only questions which survived for consideration before the Tribunal was whether the respondents were entitled to wages for the period from August 8, 1977 the date on which they reported for duty after the strike was called off to October 13, 1977, they having resumed their duties with effect from October 14, 1977.
5. The Tribunal by its impugned judgment and order held that refusals on the part of the petitioner to permit the respondents to resume their duties when they reported for duty on August 8, 1977 was directly connected with the industrial disputes which was subject matter of Reference (IT) No. 25 of 1975 which was pending at the time for adjudication before the Tribunal. The Tribunal was, therefore, of the view that the dispute raised before it in the complaint filed under S. 33A was covered by clause (a) to sub-s (1) of S. 33. The Tribunal further held that even if the dispute before it was not covered by S. 33(1)(a) of the Act on the ground that it was not connected with industrial dispute pending before the Tribunal, such a dispute would be covered by clause (a) of sub-s (2) of S. 33 of the Act. The Tribunal held that whether or not the pending industrial dispute was connected with the dispute arising out of the complaint filed by the respondent under S. 33A of the Act, the petitioner had no right or authority to dismiss or discharge or punish any workman to alter their conditions of service to their prejudice except by following the procedure laid down in sub-s. (1) or sub-s. (2) as the case may be of S. 33 of the Act. The Tribunal then proceeded to consider the effect of the writing which each of the respondents was required to execute in order to resume his duties. In that context, the Tribunal held that the strike, which was described as illegal was not held to be illegal by any competent authority. It further observed that it was neither fair nor illegal on the part of the petitioner to insist that its workmen should execute such writing which was in the nature of an unconditional apology and insisting upon execution of such writing amounted to change in the conditions of service of the workmen which existed at the time of commencement of the industrial dispute covered by Reference (1) No. 25 of 1975. It further held that the action on the part if the petitioner in refusing to permit the respondents to resume their duties unless they executed writing amounts to their discharge from service. According to the Tribunal services of the respondents were dispensed with till they were reinstated in service on October 14, 1977 under the direction given by it. The Tribunal held that since the petitioner had not complied with the requirements of S. 33(2)(b) the action cannot be held to be justified. In reaching this conclusion, the Tribunal took into consideration the fact that none of the respondents was paid wages for one month nor was any application made to the competent to authority for obtaining approval of the proposed action of discharging the workmen. In the view which it took, the Tribunal held that the complaint filed by the respondents was maintainable under S. 33A of the Act. It further held that there was no justification for refusing to allow the respondents to resume their duties with effect from August 8, 1977. The Tribunal, therefore, held that each of the respondents was entitled to wages for the period from August 8, 1977 and directed the petitioner to pay such wages to the respondents.
6. As stated above all the respondents have been allowed to resume duties with effect from October 14, 1977. In fact the stand which was taken up by the petitioner before the Tribunal was that they had never terminated the service of the respondents and that they continued to be in its service. It was in view of this stand taken up by the petitioner and the fact that the respondents were allowed to join their duties with effect from October 14, 1977, that the only question which arose for determination before the Tribunal was whether the petitioner was justified in refusing to pay wages to the respondents for the period from August 8, 1977 to October 13, 1977. The respondents did not claim wages for the period from July 26 to August 7, 1977, the period during which the workmen were alleged to be on strike. It was contended on behalf of the petitioner that since the respondents had participated in a strike which was illegal, the petitioner was justified in withholding wages for the period from August 8 to October 13, 1977. This period is admittedly not covered by the period during which the workmen were on strike. The wages are deducted for the period from August 8, 1977, the date on which the respondents reported for duty on were not allowed to resume duty, to October 13, 1977, the last day before which they were allowed to resume duties. Respondents were not allowed to join their duties on August 8, 1977, because they refused to pass or execute the writing adverted to above. In other words, they were not allowed to resume duty not because they had gone on illegal strike but because they refused to execute the writing. Therefore, the question whether or not the respondents had participated in the strike which is alleged to be illegal, recedes into background. No action was taken against the respondents for participating in the illegal strike. Now, the question is whether there was any justification for the petitioner to insist upon the respondents executing the writing by which they were required to admit that they had proceeded on illegal strike and to pray to be pardoned for the same. There was no specific charge against the respondents that they had participated in an illegal strike. It is true that by a general notice the petitioner had informed all its workmen that the strike resorted to by them with effect from July 26, 1977 was illegal strike and that they should resume their duties immediately. But it cannot be gainsaid that none of the workmen was individually charged for participation in the illegal strike. Since there was no charge for participation sin the illegal strike, no action or penalty could have been imposed for participation in the illegal strike. In fact, the petitioner wanted its workmen to resume their duties. The workmen withdrew the strike and decided to resume work with effect from August 8, 1977. It was in pursuance of this decision that the respondents along with other workmen reported for duty on August 8, 1977. However, before permitting any workman to resume duty, petitioner insisted upon execution of the aforesaid writing. Those workmen who did not execute writing were not allowed to resume duty. Respondents were amongst those workmen who refused to execute writing and it was, therefor, that they were not allowed to resume their duties. In other words, at the costs of repetition, it may be stated that it was not on account of their participation in the illegal strike that they were not allowed to resume their duties but it wash on account of their refusal to execute the writing that they were not allowed to resume their duties. None of the workmen is penalised for participating in the strike which is alleged to be illegal. The workmen who had participated in the strike but who had executed the writing were allowed to join their duties. Therefore, the only conclusion which can be legitimately reached is that the respondents were prevented from joining their duties because they refused to execute the writing.
7. By executing writing, the respondents were required to admit that they had participated in the strike which was illegal. Besides giving assurance for not participating in such illegal strike in future and seeking pardon for having participated in the illegal strike, they were also required to state that it would be open to the petitioner to impose any penalty on them for participating in the illegal strike, they penalty would be binding on them and that they would not question the validity of imposition of such penalty. Even assuming that it was open to the petitioners to take disciplinary proceedings against the respondents for participating in the aforesaid strike, we fail to see what right or authority the petitioner had to demand the aforesaid writing from the respondents. By demanding such writing, what in effect and substance the petitioner was proposing to do was to hold the respondents guilty and impose punishment upon them without framing any charge or holding any inquiry against them. It is not necessary for us to consider whether or not as a result of refusal to allow the respondents to join their duties, there was termination of their services, since according to the petitioner itself services of the respondents were never terminated and that they had continued to be in its service. In fact, as pointed out above, the respondents have already joined their duties with effect from 14th October, 1977. The respondents, however, have not been paid their wages for the period from 8th August, 1977 to 13th October, 1977. Since the petitioner was not justified in demanding the writing from the respondents, which it did it must be held that it was the petitioner, who prevented the respondents form joining their duties when they reported for duty on 8th August, 1977. The respondents could not resume duty only on account of unjustified and illegal demand made by the petitioner for execution of the writing. In our opinion, the respondents were prevented from performing their duties from 8th August to 13th October, 1977, on account of the illegal and unjustified act on the part of the petitioner in insisting upon execution of the writing and allowing them to resume their duties only if they executed such writing. Insistence upon execution of the writing and deduction of wages for the aforesaid period amounted to changes in conditions of service of the respondents during the pendency of an industrial dispute before the Tribunal. It is immaterial whether or not the industrial dispute had any connection with the dispute arising out of the complaint filed against the petitioner. Withholding of wages also amounted to imposition of the penalty and such penalty could not have been imposed except by framing charge and holding an enquiry against the respondents as laid down by the Standing Orders. Insistence upon execution of the writing before allowing the respondents to resume their duties would amount to changing the conditions of service because under the conditions of service, they were not bound to execute such writing. Deduction of wages even if it does not amount to penalty, does result in change in the conditions of service because the employer has to right to deduct wages if the employee is willing to perform his duties but is prevented from performing such duties on account of the illegal act on the part of the employer. Requirements of S. 38 have not been complied with while changing the conditions of service of the respondents. In other words, the provisions of S. 33 have been con-travened justifying filing of the complaint under S. 33A of the Act.
8. It was urged on behalf of the petitioner that it was open to the petitioner to terminate the services of the respondents or discharge them from service or to deduct their wages for participating in the strike which was illegal. Therefore, even if no inquiry was held against the respondents, it was open to the petitioner to justify their action of withholding wages for the aforesaid period before the Tribunal. In support of this contention, reliance was placed on the decision of the Supreme Court in Workmen v. Motipur Sugar Factory [1965-II L.L.J. 162]. As pointed out above, deduction of wages is not on account of the respondents participation in any strike which was illegal but on account of their failure to execute the writing. It was because the respondents did not execute the writing that they were not allowed to resume their duties till 13th October, 1977. Therefore, there is no question of justifying the action of withholding or deduction of wages on account of participation in the so called illegal strike. In the view which we are taking, the aforesaid decision of the Supreme Court has no application to the facts of the present case. It was then urged that the employer has a right to take assurance from his workmen that he would not commit misconduct, that he would not indulge in illegal activities etc. and if such assurance is insisted upon by the employer, such action cannot be held to be illegal. In the connection reliance was placed on two decisions of the Bombay High Court in (1) Industrial Tube Mfg. Co. v. S. R. Samant, (1981) Lab I.C. 379 and (2) Mafatlal Engg. Works v. Association of Engineering Workers (1983) Lab I.C. 777. We have already reproduced above the writing which was sought to be taken from each of the respondents. This writing was not merely an assurance for good behavior but it contained an admission of participating in the illegal strike. The writing also required the workmen to seek pardon of the petitioner and to give an undertaking that he would not question validity of any penalty that petitioner may decide to impose upon him for participation in the illegal strike. It no doubt contains assurance that the workman would not indulge in similar misconduct in future but that was not the only thing which he was required to state. In our opinion, the writing cannot be treated as a mere assurance of good behavior as sought to be urged on behalf of the petitioner. The above decisions of the Bombay High Court which we need not refer to in detail are, therefore, of no help to the petitioner.
9. In our opinion the Tribunal was right in holding that conditions of service of the respondents were changed to their detriment without complying with the provisions of S. 33. Petitioner was not justified in withholding and/or deduction of respondents wages for the period from 8th August to 13th October. In our opinion therefore the Tribunal was right in giving directions which it gave and there is no reason to interfere with the order passed by it.
10. In the result this petition fails and is dismissed. Rule discharged with costs.
11. Petition dismissed.