D.P. Gupta, J.
1. This writ petition has been filed against the award passed by the Judge. Industrial Tribunal No. II, Rajasthan, Jaipur (hereinafter referred to as 'the Tribunal') dated April 14, 1975, allowing the workmen one half wages for the strike period.
2. The undisputed facts are that the workmen of the Man Industrial Corporation Limited, Jaipur (hereinafter called 'the Corporation') went on strike on August 16, 1969, along with the workmen in other Engineering Industries. The strike in the Corporation continued upto October 8, 1969 as the workmen demanded implementation of the recommendations of the Wage Board, while the employers were disputing the demand made by the workmen. After the strike was over, the workmen raised an industrial dispute regarding the wages for the strike period from August 16, 1969 to October 8, 1969. The State Government referred the aforesaid demand of the workmen relating to the wages for the strike period to the Industrial Tribunal No. II, Jaipur. The Tribunal by its Award dated April 14, 1975 held that the strike was prima facie justified, but the workmen were also equally to blame as they exaggerated the demand, which the management with its small sources could not have met. Thus, according to the Tribunal the blame for non-implementation of the recommendations of the Wage Board should be shared equally, both by the management and the workman. As such, the Tribunal awarded the workmen one half wages for the strike period from August 16, 1969 to October 8, 1969, payable in three instalments.
3. In this writ petition it has been urged by the learned Counsel for the employer that the strike was in contravention of the provisions of Section 23(b) of the Industrial Disputes Act, 1947 'hereinafter referred to as 'the Act') and as the strike was illegal, there was no question of payment of wages for the strike period, merely on the alleged ground of justifiability of the strike. It was urged by the learned Counsel that the strike should not only be justified, but it should also not be illegal, so as to entitle the workmen to claim wages for the strike period.
4. Section 23(b) of the Act reads as under:
23. General prohibition of strikes and lock outs
No workmen who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workmen shall declare a lock out:
(a) xx xx xx(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;(bb) xx xx xx(c) xx xx xx
5. The case of the petitioner is that a reference bearing No. IT/4 of 1966, relating to payment of bonus was pending before the same Industrial Tribunal for consideration at the time when the workmen resorted to the illegal strike on August 16, 1969. It has further been alleged that another reference, being IT/9 of 1966, relating to the award of dearness allowance was also pending before the same Industrial Tribunal at the relevant time. The petitioner had furnished details of the pending disputes before the Tribunal, but the learned Counsel appearing for the workmen before it contended himself merely by arguing that no such reference was put into evidence-Learned Counsel for the petitioner contended before this Court that the aforesaid two disputes, relating to payment of bonus and dearness allowance between the workmen and the management of the Corporation, were pending before the very same Industrial Tribunal and that the names of the parties, the case numbers of the two references and other details in respect thereof were furnished by the petitioner before the Tribunal. Yet the Tribunal failed to give a finding on the question as to whether the strike was illegal on account of the pendency of the aforesaid two reference cases at the relevant time. Copies of the relevant documents relating to the two reference cases referred to above, have been placed before this Court on behalf of the petitioner as Annexures S.T.Y. and Z.
6. It appears from perusal of those documents that on February 26, 1966, the State Government referred a dispute between the workmen of the Man Industrial Corporation, Jaipur represented by the Man Industrial Corporation Mazdoor Union and the Management of the Corporation on the question as to whether the workmen of the Corporation were entitled to get bonus at a higher rate than 4% of their pay for the years 1962 63 and 1963-64 In the aforesaid reference, a 'No-Dispute Award' was passed by the Industrial Tribunal, Rajasthan Jaipur on February 2, 1974 on the ground that no evidence was led by the parties and the Union did not press its claim for higher bonus for the workmen. It also appears there from that on March 23, 1965, the State Government made another reference to the Industrial Tribunal Rajasthan Jaipur in respect of a dispute between the workmen of the Corporation represented by the Man Industrial Corporation Mazdoor Union and the Management of the Corporation regarding minimum increase of Rs. 25/- per month towards clearness allowance to all categories of workmen and for increase of the dearness allowance according to the price index. This reference was decided by the Industrial Tribunal, Rajasthan, Jaipur by its Award dated September 8, 1969 granting dearness allowance to the different categories of workmen at various rates. In these circumstances, there can be no doubt that at the time when the workmen went on strike on August 16, 1969 both the above mentioned disputes between the workmen and the management of the Corporation were pending before the Industrial Tribunal, Rajasthan, Jaipur.
7. In Provat Kumar Kar and Ors. v. William Trevelyan Curties Parkar : AIR1950Cal116 , it was held that the expressions used in Clauses (a) and (b) of Section 23 covered all strikes or lock-outs relating to the 'industrial establishment, irrespective of the subject matter which originally gave rise to the disputes which have been referred to a Tribunal, if the proceedings were undoubtedly pending before such Tribunal at the time when the employees went on strike and it was wholly immaterial whether the proceedings ever fructified into an award or whether they ultimately proved to be infructuous. Their lordships pointed out that object of Clauses (a) and (b) of Section 23 of the Act is to ensure an atmosphere of calm and peace during the adjudication of an industrial dispute. Their Lordships observed as under in the aforesaid case:
Clauses (a) and (b) of that section prohibit workmen striking or any employer locking out his employment during the pendency of conciliation proceedings, and seven days after the conclusion of such proceedings, and during the pendency of proceedings before a Tribunal and two months after the conclusion of such proceedings. There is nothing in these two clauses from which the Court can infer that a strike is permissible or a lockout is permissible where the subject matter of the dispute is different from the subject matter of the dispute pending before a Tribunal or before a conciliation authority. It appears to me that the words of Clause (a) and (b) cover all strikes or lock-outs relating to the industrial establishment which have been referred to a Tribunal or to the conciliation authorities.
8. Similarly, in State of Bihar v. Deodar Jha and Ors. : AIR1958Pat51 after referring with approval to the decision of the Calcutta High Court in Provat Kumar Kar's case (I) their Lordships of the Patna High Court observed as under:
The words of Clauses (a) and (b) of this section, according to this decision, cover all strikes and lock outs irrespective of the subject matter of the dispute being different from the subject matter of the dispute pending before a Tribunal or before a Conciliation Authority. It is true that the resolution regarding alleged victimisation of workers and certain alleged pending demands were not for consideration by the Tribunal, but that does not make any difference in as much as the workers are not permitted in law to resort to a strike during the pendency of a proceeding before a Tribunal or a Board according to the conditions laid down both under Section 22 and Section 23 of the Act.
9. The decisions in the aforesaid two cases were approved by the Supreme Court in Chemicals & Fibres of India Ltd. v. D.G. Bhoir and Ors. (1975) 4 SCO 332 and it was observed that even if the proceedings pending before the Labour Court, Industrial Tribunal or National Tribunal might relate to certain matters only, there cannot be a strike or lock-out even in relation to matters other than those which are pending before the Labour Court. Tribunal or National. Tribunal. However, their Lordships of the Supreme Court explained that if a dispute was pending before a Labour Court or Tribunal in respect of an individual workman then the same would not debar a strike by the workmen generally and that it has to be kept in view that the dispute between one workman and the employer cannot be considered as a dispute between the whole body of employees and the employer.
10. Learned Counsel for the respondent relied upon the following observations of Krishna Iyer J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha : (1975)IILLJ168SC :
Prefatory to the discussions about the factum of misconduct and its sequel, we must remind ourselves that the strike was illegal, having been launched when another industrial dispute was pending adjudication. Section 23(1) appears, at a verbal level, 10 convey such a meaning although the ambit of Sub-clause (a) may have to be investigated fully in some appropriate case in the light of its scheme and ration-able. It looks strange that the pendency of a reference on a tiny or obscure industrial dispute and they often pends too long should block strikes on totally unconnected yet substantial and righteous demands. The constitutional implications and practical complications of such a veto of a valuable right to strike often leads not to industrial peace but to seething unrest and lawless strikes. But in present case, both before the Arbitrator and the High Court, the parties have proceeded on the agreed footing that the strike was illegal under Section 23(a). We do not reopen the issue at this late stage and assume the illegality of the strike.
The aforesaid observations clearly show that although considerable doubt was cast by the learned Judge rightly on the question as to whether a tiny or obscure industrial dispute which has remained pending for a long time should block the right of the workmen to go on strike relating to totally unconnected yet substantial and righteous demand. However, the learned Judge left the matter open for future consideration and did not depart from the decision in Chemicals and Fibres of India's case AIR 1978 CC 1489.
11. In view of the fact that two disputes relating to payment of bonus and dearness allowance between the workmen and the management of 'Corporation' had been referred to by the State Government to the Industrial Tribunal in the year 1966 and the same were pending in August 1969. It cannot be also be said that the subject matter of the aforesaid two disoutes was tiny or obsecure or too trivial to bar a strike under Section 23(b). Thus, it is apparent that the provisions of sub Section (b) of Section 23 of the Act were applicable and the workmen employed in the establishment were not entitled to go on strike during the pendency of the aforesaid proceedings before the Industrial Tribunal There can, therefore, be no doubt that the strike resorted to by the workman from August 16, 1969 to October, 8, 1969 was illegal being in contravention of the provisions of Section 23(b) of the Act.
12. On the question of justifiability of the strike, I need not go into a detailed discussion of the matter. It is apparent that the recommendations of the Wage Board were not being implemented and an agitation was being carried on by the workers for their implementation. The industries, whose resources were not adequate to accede to the demands of the workmen had approached the State Government and it had appointed a Feasibility Committee to implement the Wage Board's recommendations, after looking into the circumstances of the various units. The said Committee was unable to make any recommendations about the wage structure of the undertaking of the petitioner The workmen had put-forth their demand for increase of their wages, which the learned Judge of the Industrial Tribunal himself considered to be an exaggerated one. But at the same time, the learned Judge also observed that the conduct of the management in evading negotiations on the alleged ground of their financial inability was also not helpful. The Tribunal, therefore, held that although the strike was prima facie justified, yet the workmen were also to be equally blamed as they put forth exaggerated demand which the management with its small resources could not meet.
13. Thus, although there may be some justification for the strike, yet, the workmen were not entitled to any wages for the strike period because the strike should not only be justified, but it should also be legal at the same time. In Crompton Greaves Ltd. v. The Workmen : (1978)IILLJ80SC , their Lordships of the Supreme Court observed that it is well settled that in order to entitle the workmen to wages for the strike period, the strike should be legal as well as justified If the strike violates any provision of law, it cannot be held to be legal. At the same time, the strike cannot be held to be unjustified unless the reasons for going on strike are entirely perverse or unreasonable. Thus even if it be held in the present case that the strike cannot be held to be wholly unjustified, yet it was illegal as it was in violation of the provisions of Section 23(b) of the Act and as such the workmen are not entitled to wages for the strike period as held by their Lordships of the Supreme Court in Crompton Greaves' case : (1978)IILLJ80SC .
14. In the case of Management of Chandramalai Estate, Emakulam v. Its Workmen and Anr. AIR 1969 SC 902, it was held by their Lordships of the Supreme Court that where the demands were not of an urgent and serious nature and the workmen might well have waited for some time after the conciliation efforts failed then before starting the strike the workmen have asked the Government to make a reference. It was held that if the strike was commenced by the workmen immediately after 9 days of the failure of conciliation proceedings, it was unjustified and the claim for wages for the strike period could not be allowed. In view of the fact that the strike was in contravention of the provisions of Section 23(b) of the Act, the workmen could not have resorted to it even if there was some justification for the same Thus, the workmen cannot claim wages for the strike period for the reason that the strike was illegal.
15. In the result, the writ petition is allowed. The Award passed by the Industrial Tribunal, Nor 11, Rajasthan Jaipur dated April 14, 1975 is set aside so far it relates to the workmen of the Man Industries Corporation Ltd. Jaipur represented by the Man Industries Workers Union Jaipur. Parties are left to bear their own costs of the proceedings in this Court.