Article (April-2018)

Articles

Strike - Are workmen entitled to wages?

Deepanjan Dey

Designation : -   DGM-HR

Organization : -  Dalmia Cement (Bharat) Ltd., Meghalaya Unit

01-Apr-2018

805 Total View        

Strike is legally recognized by our industrial legislation. The Supreme Court has held that strike an important weapon in the armoury of workers/union. (ref. B.R. Singh & Ors V. Union of India & Ors ( 1990 AIR (SC) 1= 1989 (4) SCC 710= 1989 II LLJ 591). Strike has been defined in section 2 (q) of the Industrial Disputes Act 1947 which reads as follows:
"Strike" means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment;
Section 22, 23 Industrial Disputes Act prohibits strikes under certain circumstances. Compliance to section 22 in case of public utility service and for other industry section 23 is must for a strike to be legal (ref Standard Chartered Bank vs. Chartered Bank Employees Union ((1996) IILLJ 52 Del = 1996 LLR 418). Section 24 of the said act deals with illegal strikes. If the workmen of any organization resorts to strike, is management liable to pay wages, is one of the question frequently asked. Any management will argue that for any strike legal or illegal, workmen will not be entitled to wages during the period of strike based on the principle of no work no pay. However, as strike being a legally recognized right of the workmen under the Industrial Disputes Act with certain regulations and restrictions, the management may at times be liable to pay wages for the strike, in spite of its aversion to pay such wages. This article is an attempt to understand under what circumstances management may be liable to pay wages for a strike resorted by the workmen. At the outset let us understand how a strike may be interpreted by the industrial adjudicator or higher courts. Strike can be broadly classified as follows:
i. A strike may be justified but illegal.
ii. A strike may be unjustified but legal.
iii. A strike may be both unjustified and illegal.
iv. A strike may be both justified and legal.
In India General Navigation and Railway Co. Ltd. Vs Their Workmen (1960 AIR 219 = 1960 SCR (2) 1) the Tribunal had held the strike to be illegal, but it was justified. The Supreme Court disagreeing with such view opined that a strike which is is illegal, cannot be at the same time justifiable as these two conclusions cannot in law co-exist. The Court opined that the law has made a distinction between a strike which is illegal and one which is not, but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable.
In Management Of Churakulam Tea Estate vs Workmen And Anr. (AIR 1969 SC 998 = 1969 (19) FLR 203 = (1969) IILLJ 407 SC = 1969 1 SCR 931) one of the question for consideration before the Supreme Court was weather the workmen are entitled for wages for the day of strike. The Court was of the opinion as the strike was neither illegal nor unjustified and in consequence it must be therefore held that the factory workers are entitled to wages for the day they resorted to strike.
In Crompton Greaves Ltd. vs Its Workmen (AIR 1978 SC 1489 = 1978 (36) FLR 329, 1978 Lab lC 1379 = (1978) IILLJ 80 SC = (1978) 3 SCC 155) the Supreme Court on similar lines as that of Churakulam Tea Estate, held that Workmen are entitled for wages if the strike is not held to be illegal or unjustified. The relevant observation made by the Court is as follows :
"It is well settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statutes. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse of unreasonable. Whether a particular strike was justified or not is a question of facts which has to be judged in the light of the facts and circumstances of each case. It is also well settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitles them to wages for the strike period."
However, it will be interesting to note that in contrary to the view taken in Churakulam Tea Estate case and Crompton Greaves Ltd. case the Supreme Court in Bank Of India vs T.S. Kelawala And Ors (1990 SCR (3) 214 = 1990 SCC (4) 744 = JT 1990(2)339 = (1990) 2 L.L.J. 39) allowed the appeal of the employer and held that the employer has every right to deduct the wages for the period of strike notwithstanding strike is legal especially when it is an admitted position that the workers have resorted to strike on a mass scale. In this instant case the Supreme Court had to deal with the common question of law i.e. whether an employer has the right to deduct wages unilaterally without holding an enquiry for the period it goes on strike. It was opined by the Court that in such instance of mass scale strike holding an enquiry is not required. It was further held that even if the service rules/regulations were silent on the point, the employer could legally deduct the wages under the provisions of the Payment of Wages Act. The deduction to be made from wages may be full for period of strike or pro-rata for the period of absence only will depend upon the facts of each case.
In view of apparent conflict between three decision of Supreme Court the Churakulam Tea Estate, Crompton Greaves and T.S. Kerawala cases (supra) in regard to entitlement of wages during a Strike period the matter was examined by a Constitution bench of the Supreme Court in the case between Syndicate Bank & Anr vs K. Umesh Nayak & Ors (1995 AIR 319 = 1994(3)Suppl. SCR 491 = 1994(5) SCC 572 = 1994(5) JT 647). While dealing with these cases at the very outset the court made few observations which is set out here under as it will provide the fair idea about the controversy.
"These appeals have been referred to the Constitution Bench in view of the apparent conflict of opinions expressed in three decisions in Management of Churakulam Tea Estate (P) Ltd. v. The Workmen & Anr. and a two-Judge Bench decision in Crompton Greaves Ltd. v. Its Workmen, on the one hand, and a two-Judge Bench decision in Bank of India v. T. S. Kelawala & Ors. (1990 I CLR 748) on the other. The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of strike? In the first two cases, viz., Churakulam Tea Estate and Crompton Greaves, (supra), the view taken is that the strike must be both legal and justified to entitle the workmen to the wages for the period of strike whereas the latter decision in T. S. Kelawala, (supra), has taken the view that whether the strike is legal or illegal, the employees are not entitled to wages for the period of strike. To keep the record straight, it must be mentioned at the very outset that in the latter case, viz., T. S. Kelawala (supra) the question whether the strike was justified or not, was not raised and, therefore, the further question whether the employees were entitle to wages if the strike is justified, was neither discussed nor answered. Secondly, the first two decisions, viz., Churakulam Tea Estate and Crompton Greaves, (supra) were not cited at the Bar while deciding the said case and hence there was no occasion to consider the said decisions there. The decisions were not cited probably because the question of the justifiability or otherwise of the strike did not fall for consideration. It is, however, apparent from the earlier two decisions, viz., Churakulam Tea Estate and Crompton Greaves, (supra), that the view taken there is not that the employees are entitled to wages for the strike period merely because the strike is legal. The view is that for such entitlement the strike has both to be legal and justified. In other words, if the strike is illegal but justified or if the strike is legal but unjustified, the employees would not be entitled to the wages for the strike - period. Since the question whether the employees are entitled to wages, if the strike is justified, did not fall for consideration in the latter case, viz., in T. S. Kelawala, there is, as stated in the beginning, only an apparent conflict in the decisions."
The Constitution Bench of the Supreme Court was of the opinion that there is nothing to suggest that decisions of the Charukulam Tea Estate and Crompton Greaves cases [supra] is contrary to the view taken in T. S. Kelawala. The court inter-alia observed and held as follows :
". . . . . . What is held in the said decisions is that to entitle the workmen to the wages for the strike - period, the strike has both to be legal and justified. In other words, if the strike is only legal but not justified or if the strike is illegal though justified, the workers are not entitled to the wages for the strike period. In fact General Navigation case [supra], the Court has taken the view that a strike which is illegal cannot, at the same time be justifiable. According to that view, in all cases of illegal strike, the employer is entitled to deduct wages for the period of strike and also to take disciplinary action. This is particularly so in public utility services.
We, therefore, hold endorsing the view taken in T. S. Kelawala that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike - period, the strike has to be both legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator within the meaning of the Act." The judgment of the constitution bench in Syndicate Bank & Anr vs K. Umesh Nayak & Ors (Supra) has put to rest the apparent conflict between the rulings of Churakulam Tea Estate, Crompton Greaves and T.S. Kerawala cases. After the judgment of the constitution bench, the law as it stands now is that the workmen will be entitled for wages if the strike is both legal and justified. To decide the legality, Illegality, justifiability or unjustifiability of the strike is the domain of the Industrial Adjudicator. Hence, if the Industrial Adjudicator finds that the strike in question is both legal and justifiable workmen will be entitled to wages.