(1) On a reference under S. 10(1)(c) of the question 'whether deduction of two days' wages and dearness allowance from the earnings of the workers concerned for the month of March 1961, was justified?' the Industrial Tribunal, Madras, answered it in the negative. The employer is Jawahar Mills Ltd., Salem, a textile industry and, therefore, a public utility service within the meaning of S. 22 of the Industrial disputes Act. The workmen would appear to have opposed the introduction by the Management of two additional cone winding machines in the reeling department, which eventually resulted in a strike on December 9, 10, 14 to 16, 1960. The dispute regarding the introduction of winding machines was settled on 19-12-1960. In January 1961, the management issued notices calling upon the workmen to show cause why action should not be taken against them for resorting to an illegal strike. The management was not satisfied with the explanation and on the view that the strike was not justified passed an order on 15-3-1961, cutting the wages of the workmen for two days. This they purported to do under the proviso to S. 9 of the Payment of Wages Act, 1936. In addition, the management had also made a deduction earlier of five day's wages, but this deduction is not in dispute. The workmen protested against the additional deduction under the said proviso, which led to the industrial dispute. The Tribunal noticed that it had been admitted that the strike was illegal in the sense that no notice had been given. Nevertheless in the Tribunal's view of the circumstances, the workmen were not blame for resorting to a strike, and it was unable to see on what ground it could be stated that the strike was without reasonable cause. On that basis, the tribunal held that the deduction under the proviso was not justified. This petition is to quash the Tribunal's award.
(2) The argument for the petitioner is that the tribunal has misinterpreted the proviso to S. 9 of the Payment of Wages Act. Learned Counsel contends that once the strike was admitted to be illegal with reference to S. 22 of the Industrial Disputes Act, it could not be justified by any reasonable cause. In order to appreciate this argument, it is necessary to notice the exact terms of the proviso. Section 9(1) allows deduction by the Management of wages for absence from duty. Sub-section (2) places a limit upon the deduction. Both the first two sub-sections apply to individual workmen. The proviso, which I will presently read, covers actions in concert and consequent absence of more workers than one without due notice and without reasonable cause. In such a case, the proviso permits a further deduction which may include such amount not exceeding the workman's wages for 8 days. The proviso is:
'Provided that, subject to any rules made in this behalf by the State Government, if ten or more employed persons acting in concert absent themselves without due notice (that is to say, without giving notice which is required under the terms of their contracts of employment) and without reasonable cause, such deduction from any such person may include such amount not exceeding his wages for 8 days as may by any such terms be due to the employer in lieu of due notice.'
Counsel for the petitioner submits that the words 'without due notice' will comprehend not only a strike without notice in the ordinary cases, but also a strike without such notice by workmen employed in a public utility service. Where it is a case of an illegal strike on the part of the workmen in such a public utility service, it is said that there is no question of there being a reasonable cause for such a strike. What is declared by law to be an illegal strike cannot be got over and justified by a reasonable cause for the strike. So is the argument and in support of it, reliance is placed upon India General Navigation and Railway Co. Ltd. v. Their Workmen, : (1960)ILLJ13SC . In that case, in another context, the Supreme Court observed.
'Every one participating in an illegal strike is liable to be dealt with departmentally, of course, subject to the action of the department being questioned before the Industrial Tribunal, but it is not permissible to characterise an illegal strike as justifiable. The only question of practical importance which may arise in the case of an illegal strike would be the king or quantum of punishment, and that, of course, has to be modulated in accordance with the facts and circumstances of each case. Therefore, the tendency to condone what has been declared to be illegal by statute must be deprecated, and it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers'.
On this reasoning, counsel for the petitioner urges that in cases of an illegal strike as in S. 22 of the Industrial Disputes Act, the words 'without reasonable cause' in the proviso will have no meaning, because there cannot be a reasonable cause to something which the law treats as an illegality. I am inclined to accept this interpretation of the proviso.
(3) The argument for the respondent is based upon Ss. 31 and 33-A. Section 33 enjoins that without the permission of the prescribed authority, no management, during the pendency of a conciliation proceeding or any proceeding before the authorities mentioned, can, it regard to the matters mentioned dispense with the services of a workman except with the express permission in writing of the authority before which the proceeding is pending. A contravention of this provision is made punishable by S. 31. Section 33-A makes special provision for adjudication as to whether the conditions of service were changed during the pendency of any such proceeding. The Supreme Court in Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation, : (1959)IILLJ666SC held that in an application under that section the fact that no permission was obtained from the prescribed authority would not be conclusive, but the Tribunal, should have to go into the further question whether there was proper cause for the employer to change the conditions of service of the workmen concerned. Mr. Lakshminarayana Reddi, for one f the respondents, argues that through a contravention of S. 33 is made a penal offence by S. 31, nevertheless, in an enquiry under S. 33-A the Tribunal is obliged to go into the question not only of want of permission, but also the question whether there was a proper cause for termination.
Learned counsel applies this analogy to the interpretation of the proviso to S. 9 and he says that notwithstanding the fact that a strike may be illegal, the question whether it was for a reasonable cause could be gone into by the Tribunal. In my view, this contention cannot be accepted, The Tribunal, under S. 33-A is directed to deal with the application as an industrial dispute and is authorised, as has been held by the Supreme Court, to go into the question of not only want of permission, but if the was want of permission, also into the question whether there was sufficient case for the management to change the conditions of service. I do not think that the analogy of S. 33-A read with the other two sections can be applied to the interpretation of the proviso. In my view once it is held that the strike was illegal, and here the fact was admitted, it cannot be justified by a reasonable cause for committing an illegality and that being the case, of an illegal strike, in a public utility service, the question of reasonable cause will not arise.
(4) Mr. Sankaran, for another respondent, argued that the Tribunal has not rendered any finding on the question of the illegality of the strike. This argument overlooks what has been noted by the Tribunal itself, namely, that the strike was illegal was admitted before it. Learned counsel also argues that the Management having applied sub-section (1) of S. 9 of the Payment of Wages Act, in the first instance it cannot later invoke the proviso and make an additional cut in the wages. This contention again overlooks the fact that there is no such restrain or restriction placed upon the management under S. 9. As I indicated, sub-section (1) of S. 9 deals only with individual cases and the proviso with concerted action and in the latter case a further deduction is permitted. It is not required that both sub-section (1) of S. 9 and the proviso to that section should be applied simultaneously. Lastly, it is contended by Mr. Sankaran that as the matter came before the Tribunal in the form of an industrial dispute, it could go into the question of reasonableness of the strike or a reasonable cause for the strike. But the point is, the Tribunal was bound by the proviso to S. 9. It is true that in adjudicating an industrial dispute, the Tribunal's jurisdiction is wide. Even so, it must act within the confines of the law.
(5) The petition is allowed and the Tribunal's order is quashed, but no costs.
(6) Petition allowed.