CHAPTER V

JUDICIAL RESPONSE TO INDUSTRIAL DISPUTES

5.1 Introduction

Meaning and importance of industrial jurisprudence, trade union

freedoms- judicial responses, role of Supreme Court under Article 136 of

Indian Constitution, problems of strike in Indian industry, and wage

structure decisions of judiciary and its responsiveness in settling the

industrial disputes has discussed in this chapter.

The role of management and trade unions in settlement of industrial

disputes is very important and dynamic concept specially in India where the

relations between capital and labour is very critical in view of poverty,

illiteracy, and the ignorance of the majority of the workers in organized

industry and also in unorganized sectors. Therefore always many conflicts

between these two parties arise frequently posing a great threat to the

industrial peace and production is affected and ultimately the progress of

the society gets crippled at this juncture, is set rite the machine of industry

for the progress of the nation, it is the responsibility or obligation of the

judiciary to interfere and settle the disputes.

173
 The role of the judiciary is very significant in providing social

justice to the workers by the eminent judges. Justice Krishna Iyer in the

case of Indian Express News Papers Pvt. Ltd., Vs Indian Express News

Papers Employees Union1 said that industrial jurisprudence is not static,

rigid or textually cold but dynamic, burgeoning and warm with life. It

answers in emphatic negative to the biblical interrogation. The Industrial

Tribunal of India in the areas unoccupied by precise block letter law, go by

the constitutional mandate of social justice in the claims of the little

people. It can be pointed out here that in every state certain ideas or values

will be followed and they can be achieved through various laws. These

values are very important to the society because through these values the

state desires to mould the society. In India these values are fundamental

Principles which are projected in the Constitution.

The Constitution of India embodies the noble and grand vision of

liberty, equality, and fraternity and also promise to secure social, economic

and political justice. The Constitution of India desires to attain these goals

through the legislation and judiciary. In this manner the Constitution has

served as basis for jurisprudence The same is true in the case of industrial

1
1978, I LLJ II (SC), pp.12 13.

174
jurisprudence, therefore it is said that India Constitutional law is the touch

stone to the development of industrial jurisprudence in India.

The industrial jurisprudence in India is value oriented and seeks to

attain a very just and social order. The Industrial Dispute Act, 1947 is a

peace of welfare legislation desired in achieving social as well as economic

justice which is the aim of industrial jurisprudence.

In the early periods of Industrial Revolution, Laissez Faire

continued to rule for fight some time. Under the system of Laissez faire

the activities of Government are very limited to collection of revenues and

maintenance of peace and order and defense against external threats or

aggression. This type of Government laid to many social problems

including anarchy in industrial relations and exploitation of labour giving

rise to many serious social tensions. But after some time the Industrial

workers had self conscious and started understanding or realizing their

importance for the industry to organize themselves into unions and also

started representing their grievances to the authorities concern including the

employers.

175
 This type of approaches by the workers was resisted by the

employers not only by using physical force, but also by the use of penal

provisions of law for some time but could not be continued for a longer

period. This type of action taken by the employers resulted into some sort

of social consciousness of the needy laid for framing the better working and

service conditions. This was also required the support of the law and

ultimately many labour laws have been passed for the welfare and

protection of the industrial workers and ultimately this led to the birth of

industrial jurisprudence which has been recognized by the state and society.

5.2 Importance of industrial jurisprudence

Before going to discuss further details about the concept of the

industrial jurisprudence the researcher desires to give the meaning and

importance of the industrial jurisprudence.

In this broad conceptual point of view it is very important to discuss

the concept of Industrial Jurisprudence very briefly. The compound word

industrial jurisprudence is the combination of two independent words

Industry and Jurisprudence. The term Jurisprudence is derived from

latin word Jurisprudentia and is a combination of Juris and Prudence

which literally means knowledge of law. In this generic and primary

176
sense jurisprudence includes the entire body of legal doctrine2. Holland3

describes it as the formal science of positive law and Allen4 as the

scientific synthesis of the essential principles of law. According to Patten

Jurisprudence is a particular method of study and not of the law of one

country but of the general notion of the law itself which is not primarily

interested in cataloguing uniformities, nor in discovering rules which all

nations accept, but to study the nature of law, the nature of legal institutions

and their relationship with the society.

There can be no law without Legislative Act said Austin in his

Jurisprudence5, and yet for framing of laws, jural basis or sources of laws

are required. Whatever be the source, it indicates an idea or value which

the particular law seeks to achieve. These values are of utmost importance

to the society as upon their achievement depends on the future shape of the

society itself. Indeed every law should indicate the choice of value made

by the society and all its processes should work towards its achievement.

This is particularly true about Indian industrial jurisprudence, which is the

2
P.J. Fitzagerald, Salmond on Jurisprudence, Chap 1 Universal Law Publishing Co. Ltd., 2003,
at p.2.
3
T.E.Holland, Elements of Jurisprudence, Chap 1, 13th Edn., Oxford.
4
C.K.Allen, Law in the making (Chap 1), 7th Edn., Oxford Clarendon Press Paper Book, 1964.
5
G.M.Kothari,Labour & Practice, vol. I, 1980, p. A 3.

177
value oriented and seeks to achieve a just and fair social order in actuality

through the process of law6.

The emergence of industrial society because of industrial revolutions

and commencement of industrialization in the 18th century has changed

and modified the structure of the society. The progress of the industry has

direct effect on industrial towns as well as big industrial towns and

positively resulted into industrial progress converting globe into a big

workshop.

What in these circumstances become primarily important was better

and harmonious relationship between employer and employees not as a

master and slave, nor as master and serf nor even as master and servant, but

as employer and employee came to be recognized and considered equal

partners in the industry in the course of time.

The age old theory of laissez faire based upon the so called

freedom of contact was found inadequate and wanting for the development

of harmonious and amicable relations between the employers and

employees and could not secure the close cooperation of the two. The

concept of prevailing jurisprudence were to legalistic to achieve this objects

6
A.A. Vaidya: Industry & Industrial Disputes - The Judicial Trend, 2009, p.47.

178
it learned too much on the theory of natural rights and misconstrued

them7.

Industrial jurisprudence covers almost all the aspects attached with

industrialization and its scope is very vast and it touches all the corners

such as social, political, economical, ethical and global of industrialization.

Every legal problem concerning about labour are industrial person comes

under the industrial jurisprudence. Inspite of the importance of the

industrial jurisprudence it is not free from restrictions, or limitations.

In the first instance, the industrial jurisprudence is desires to regulate

the human relation problem, which is only a part of the whole society and

therefore it would be restricted to that in its application and secondly it is

based upon principles of social justice. Inspite of many limitations the

industrial jurisprudence will have to take a final shape in future by taking

all precautions for making good relations between employers and

employees.

The importance of industrial jurisprudence can be seen from

different directions or angles. It is concerned about all industrial related

aspects and hence is of all pervading nature it effects almost all the entire

7
A.A.Vaidya: Industry & Industrial Disputes the judicial trend, 2009, p. 49.

179
world. Industrialization being complex multi faced phenomenon, industrial

jurisprudence cover all aspects attached with the industry.

5.3 Trade union freedomsjudicial responses

Trade union freedoms are the basic feature of a free, open and liberal

society where regulatory processes are merely connective and secondary

nature for accelerating the path and direction of trade unions towards self

reliance, self control and inner and outer democracy and all its feature and

processes. In such social and political frame work legal and judicial process

have helped in consolidating the trade union freedoms in all its facets and

features. It is appropriate to mention here the words of Franklin D Rusevelt,

President of United States of America that I see an American where the

workers are really free through their great union and dominated by outside

force or any director within, can take their proper place in the commercial

tables, with the owners and managers of business where the dignity and

security of the working man and woman are guaranteed by their strength

and fortified by the safeguard of the law.8

However the picture of India with regard to trade union freedoms is

quite different to the American situations. In India the Trade union

8
V.R..Krishna Iyer, Law Vs Justice problems & solutions, 1981, p. 114.

180
philosophy and movement as it birth pangs in the social milieu of economic

exploitation, political oppression and ideological hostility which emanated

from the dominant groups which viewed trade union freedom suspicious

indifference and total opposition. Hence, both regulating and judicial

process before and after independence become the major instruments or

defeating or denying and controlling trade union freedoms9.

It can be said that in the earlier times in India the primitive colonial

Trade Union Act, 1926, and the various public safety ordinances. Essential

Services Act, Criminal Law Amendment Act, The Indian Penal Code, The

Police Act and the Criminal Procedure Code, are a few examples, only such

an attitude persist in the last decades of the 20th century in the guise of

National Security Act, 1980 and the Essential Services Maintenance Act. In

so far as Indian adjudicatory processes as embodied in the Industrial

Dispute Act, 1947 and other labour management laws is concerned, it has

been tilting towards social justice rather than trade union freedoms10. The

evolution and a viable industrial jurisprudence for productivity and

improved industrial relations and successful achievement of Trade Union

Freedoms are important developments for land economic progress.

9
Ganga Sahai Sharma: Trade Union Freedoms in India, 1990, P 189.
10
Ibid.

181
 The Supreme Court in India and High Courts under the parameters

of constitutional philosophy have played a unique role through power of

judicial review which has tendered to revolutionize the methods,

approaches and interpretations opposed to attitude adopted by the

employers slowly and systematically a new industrial jurisprudence as

grown with a decisive thought towards social justice. Faith in the rule of

law compels us to understand the implication of Constitutional Law in

labour relations and industrial adjudication.

The contributions made by higher judiciary in India in this direction

has been largely positive.

It has not merely supplemented and strengthened the legal provisions

but several cases as character a new course of action. In earlier times labour

cases decided around 1948 the High Court dismissed out of hand a demand

by the trade union leaders for a higher wages on the ground that the court

cannot alter the contractual obligations between the parties after this case.

The then Federal Court in the case of Western India Automobile

Association Vs Industrial Tribunal11 had pointed out that in the interest of

social justice with a view to securing peace and harmony between the

employer and the workman industrial adjudication impose new obligation

11
AIR, 1949 FC 111.

182
or abolish the old ones or after the existing terms and conditions of

employment if it thought to do so. This opinion of the Federal Court was

supported subsequently by the Supreme Court in Bharat Bank Ltd. Vs The

Employees of Bharat Bank Ltd.12 and other subsequent cases.

It is very interesting to mention here that the Supreme Court of India

has emphatically propounded the very ideas of social justice in the form of

general interest of the community in its historical judgment of State of

Bihar Vs Kameshwar13 which are given below:

with the onward march of civilization, our notions as to be scope of

general interest of the community are fast changing and widening with the

result that our old and narrower notions as to the sanctity of the private

interest of the individual can no longer stem the forward following tide of

time and must necessarily give way to the broader notions of general

interest of the community. This modern trend social and political

philosophy well reflected and given expression in our constitution.

In the post independence period India adopted the philosophy of

social and economic justice and the planned production target by

introducing scheme of mixed economy to avoid loss of production caused

12
1950 LLJ SC 931.
13
AIR, 1952 SC 252.

183
by the recurring industrial strife. Therefore the Government of India

adopted strike or lockout ban policy to maintain peace in industry with

quasi democratic measures which assured workers association in non

essential matters.

The Government of India introduced a system of compulsory

conciliation and adjudication machinery to achieve the objectives of

maintaining industrial peace, productivity and social justice because of the

workers who were very weak and incapable to bargain with the employer

and settle the dispute. With a view to relax the legislative grip and to

promote industrial democracy the judiciary has made new dimensions in

maintaining the industrial relations.

It is interesting to mention the Judgement of the Supreme Court in

the case of J.K. Iron & Steel company Ltd. Vs Iron & Steel Mazdoor

Union14 Mr. Justice Vivien Bose speaking from the Supreme Court laid

down that the decision of the Tribunal must be based on established

principles and not import any notion of so called justice or compulsion to

safe guard the interest of the workman. In the same case Mr. Bose said that

one sided benefit to the workman should not be given by evolving the

notion of socioeconomic justice.

14
1956 I LLJ 227 (SC).

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 The Supreme Court of India during the periods of 1950s decided

industrial dispute generally within the ambit of the strict law and adhering

to the literal interpretation of the provisions of labour legislation and

contractual obligations. Justice Bhagavati, an eminent judge of Supreme

Court in an exceptional situation evolved the notion of social justice who

remarked that the ultimate object of industrial adjudication is true to help

the growth and progress of the national economy to promote industrial

peace.15 With the effort of Chief Justice Gajendra Ghadkar evolved law in

response to the needs of the society. Therefore the judgment of the highest

Tribunal reveals that the Judges of the Supreme Court have spoken

different times with different voices. Some of the judges in delivering the

judgment on labour matters have established new principles of industrial

jurisprudence through judicial legislation to safe guard the emerging trade

union freedoms, thus protecting the interest of the socially and

economically weaker sections of the society16.

Justice Hidayatullah observed in the case of Rastriya Mill Mazdoor

Sangh Vs Apollo Mills Ltd.,17 that the social justice is not based on

contractual relations and is not to be enforced on the principles of contract

15
Nirmala Textile Finishing Mills Ltd., Vs Second Industrial Tribunal, Punjab, 1957 SCR, 335.
16
Ganga Sahai Sharma Trade Union Freedoms in India, 1990, p 192.
17
AIR, 1960, SC, 819.

185
of service, and it is something outside these principles and is invoked to do

justice without a contract to back it.

The Supreme Court of India played a very important role specially in

protecting the interest of poor working class by ignoring the strict

contractual laws and provided social justice to them.

Dr. P.B. Gajendra Ghadkar introduced the very important

philosophy that the concept of industrial peace is positive and postulates the

existence of the understanding, cooperation and sense of partnership

between the employers and employees. The state should try to avoid strikes

and strifes in the industrial world to maintain cordial and harmonious

relationship between labour and management.

Justice Gajendra Ghadkar made his sincere efforts to uplift the

deprived and downtrodden people within the parameters of the law. In the

case of Standard Vacuum Refining Company Vs Its Workmen18 with a view

to clarify the transformation era of notions and conception of labour, the

advent doctrine of welfare state confined and routed deeply in the nations

progressive philosophy which have rendered the traditions concept of

laissez faire absolute. And where the social consciousness of the general

18
1961 I LLJ 22 SC.

186
community becomes more alive and active, the welfare policy of the state

takes a more dynamic forum, the national economic progress stage to stage

and under the growing strength of trade union, collective bargaining and

industrial democracy enter the field. The labour problem ceases to be

purely arithmetical and physical satisfaction.

It is also to be pointed out that industrial adjudication and also

necessarily to be aware of the current economic thought around in the case

of J.K. Cotton Spinning and Weaving Mills Company Ltd., Vs Labour

Appellate Tribunal.19 It was held that the ultimate object of industrial

adjudication is to help the growth and progress of national economy.

There are some judges who created history in delivering justice to

the working class. One of such persons is justice V.R. Krishna Iyer who

made revolutionary and progressive philosophy. To him the principles of

scientific management tend to value technical efficiency about human

factors may not hold goods in managing human beings who have

emphatically demonstrated in recent years that they cannot be treated as

cogs in the wheel of machinery. They would like to have a responsible and

respectable place in society and also in the industry where they work for

about a 100 years.

19
1963 II LLJ 444.

187
 Social justice is justice according to social interests subordinate to

fundamental rights. In the case of Board of Trustees, Port of Bombay Vs

Dilip Kumar20. Justice Bhagavathi said that justice must not only be done

must seem to be done is not a requirement for courts alone, it applies with

equal vigour, and rigour to all those who must responsible for fair play in

action.

The above discussion it is clear about the role played by the

judiciary in providing justice and also for the maintenance of good labour

management relations. There is no doubt that justice alone can maintain

relations between the employees and employers and by which a nation can

achieve productivity and industrial peace.

5.4 Role of supreme court under article 136 of Indian constitution

The Article 136 of the Indian Constitution provides that the Supreme

Court may, in its discretion, grant special leave to appeal from any

Judgment, Decree, Determination, Sentence, or Order many causes or

matter passed or made by any court or Tribunal. There has been a long

controversy in the judicial circle about the use of this power. The question

is whether the Supreme Court jurisdiction to entertain an application for

20
1983 Lab. IC 419 SC.

188
leave to appeal against the award of a Tribunal was raised for the first time

in the case of Bharat Bank Ltd., Vs The Employees of Bharath Bank 21 Chief

Justice Kania was of the opinion that the wording of the Article 136 were

wide enough to give jurisdiction to the court to entertain such an

application although having regard to the nature of the functions of the

Tribunals, the court would reluctant to entertain such an application.

Justice Fazal Ali was also of the opinion that since the Tribunal had

all the trappings of the court and performed some kind of judicial functions

its decisions were appealable to the Supreme Court.

Justice Mahajan said that mere circumstances that a remedy in the

nature of writ of certiorari was opened to the petitioners did not necessary

laid to the conclusion that the power of this court under Article 136 of the

Indian Constitution was circumscribed by that circumstance.

Whatever judicial review was permissible in one form or other, the

highest court in the land could exercise its special power and circumvent

ordinary procedure by granting special leave. In the case of Bengal

Chemical and Pharmaceutical Works Ltd., Vs Employees22. The Supreme

21
1950 II LLJ 921.
22
1959 I LLJ 413.

189
Court laid down a principle that it could exercise its discretionary

jurisdiction only in cases where awards were made in violations of the

principles of natural justice, causing substantial and grave injustice to the

parties or which raised an important principles of industrial law requiring

adjudication and final decisions of the courts or which disclosed such other

exceptional or special circumstances which merited the consideration of the

court.

In subsequent cases on the basis of, the observations denied

interference with the conclusions as to be reasonableness and fairness by

authorities empowered under the industrial dispute Act to arrive at such

conclusions. In other words the employers had been prevented from

canvassing such a question because the matter of fairness and

reasonableness was left by the legislature for decisions with authorities

constituted under the Act23.

Even in cases where the Governments power of reference under

Section 10 of the Industrial Dispute Act, 1947 was questioned, the Supreme

Court of India did not think it right to interfere with decisions taken by the

Government under that provisions through making reference to the

Government is required to indicate the nature of the dispute, was of the

23
Rohtak Hissar District Electric Supply Company Ltd., Vs State of U.P., 1966 II LLJ 330.

190
view that Government acting under Section 10 of the Industrial Disputes

Act was doing an administrative Act and the fact that it had to form an

opinion has to the factual existence of the dispute as a preliminary step to

discharge its functions, did not make it the less administrative in character

and the court could not canvas the order closely as it was a judicial or quasi

Judicial Act.

Further it is to be stated that the court could not quash the

proceedings merely because, in its opinion the Government had no material

to come to that conclusion.

In the case of State of Madras Vs C. Parthasarathi24 it was said that

rather the Government have power in the interest of industrial production to

set the machinery of settlement in motion without pausing to enquire what

the specific points of the disputes were.

5.5 Right to strike : The Constitution, Courts and Adjudication:

In India it is known fact that the strikes are frequently resorted by the

workers and the trade unions because of various reasons such as lack of

proper trade union consciousness and lack of legal awareness about the

consequences of strikes.
24
1953 I LLJ 174.

191
 The trade unions leaders emotionally declare strikes against the

employers using different types of methods. The causes of the strikes are

many such as non payment of proper wages, stringent working conditions,

failure of collective bargaining system and other methods of settlement of

industrial disputes, involvement of political parties, dominating attitude of

the management, failures in providing labour welfare and the social

security.

The right to strike has also been recognized in all democratic

societies. Reasonable restrain use of this right is also recognized. Similarly

the employers also have the freedom to use the weapon of lock out in

case workers fail to follow the rules of contract of employment. The degree

of freedom granted for its exercise varies according to the social, economic

and political variants in the system for safe guarding the public interest, the

resort to strike or lock out and in some cases the duration of either subject

to rules and regulations or voluntarily agreed to by the parties or statutorily

imposed this has been criterion underline the earlier legislation for

regulating industrial relations in the country25.

25
Report of the National Commission on Labour, 1969, p 327.

192
 The strikes and lock outs are useful and powerful weapons in the

armoury of workmen and employers and are available when a dispute are

struggle arises between them. Threats of their use even more than their

actually use, influence the course of the contest. The threat is often explicit

much more often tacit but not for that reason less effective26.

Trade unions and employers will have to use very skillfully these

weapons strike and lock out by way of threatening or actual may help one

party to force the other to accept the demands, or atleast to concede

something to them. But reckless use of this weapon creates the risk of

unnecessary stoppages. The stoppages hurt both parties badly create worse

tensions and frictions and violations of law and order and above all, from

the public point of view they retard the Nations Economic Development.

A strike could be defined as 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. In

English law, there is no comprehensive legal definition of strike or

industrial action. Perhaps the closet we come to is Lord Dennings attempt

in Court of Appeal in 1975, when he said that a concerted stoppage of

26
Indian Law Institute Labour Law and Labour Relations, 1987, p 361.

193
work by men done with a view of improving their wages or conditions, or

giving vent to a grievance or making a protest about something or other, or

supporting or sympathizing with other workmen in such an endeavour.

Strikes are, in other words, weapons in the hand of the workers and their

organizations to promote and protect their economic, occupational and

social interests in the broad sense of the term.

With the constitution coming into force there was an attempt made

to bring in the theory of a concomitant right, as was inferred in Romesh

Thapars case27 to infer the right to strike within the confines of Article

19(1) (c) of the Indian Constitution.

In the case of All India Bank Employees Association Vs. National

Industrial Tribunal and others28 held as follows :

The right guaranteed by Art 19(1)(c) of the Constitution of India

does not carry with it concomitant right that unions formed for the

protection of the interests of labour shall achieve their object such that any

interference to such achievement by any law would be unconstitutional

unless it could be justified under Article 19(4) of the Indian Constitution as

being in the interest of public order or morality. The right under Article

27
1950, SCR, 404.
28
(1962) 3, SCR, 269.

194
19(1)(c) extends only to the formation of an association or union concerned

or as regards the steps which the union might take to achieve its object,

they are subject to such laws and such laws cannot be tested under Article

19(4) of Indian Constitution29.

In another case B.R. Singh Vs. Union of India,30 justice Ahmadi was

of the view that the right to strike cannot be equated to that of a

fundamental one. Strike in a given situation is only a form of

demonstration. There are different modes of demonstrations, eg. Go-slow,

sit in, work to rule, absenteeism, etc and work. Strike is one such mode of

demonstration by the workers for their rights. The right to demonstrate and

therefore the right to strike is an important weapon in the armoury of the

workers. The right has been recognized by almost all democratic countries.

Though not raised to the high pedestal of a fundamental right, it is

recognized as a mode of redress for resolving the grievances of the workers.

But the right to strike is not absolute under our industrial jurisprudence and

restrictions have been placed under it.

29
Mayuri Patel; Trade Union Law in India, Labour Industrial Cases Journal, 2008, p. 343.
30
1989 (4), SCC, 710.

195
 In the case of Communist Party of India (M) Vs. Bharat Kumar and

others31, the Supreme Court adjudicating on the legality of strikes held that

the Fundamental rights of the people as a whole cannot be subservient to

claim of an individual or only a section of the people.

Two sections of the society namely lawyers and government

servants come under the scrutiny of the Supreme Court. In the case of Ex-

captain Harish Uppal Vs. Union of India and another32, the court held that

lawyers have no right to go on strike or give a call for boycott and even

they cannot go on a token strike.

The Apex Court further opined that strike as a weapon in any field

does more harm than any justice.

In line with this trend of adjudication by the Supreme Court is the

case of T.K. Rangarajan Vs. State of Tamilnadu33

This case deals with the action of Tamilnadu Government, where by

it had terminated the services of all employees who had resorted to strike

for the fulfillment of their demands. The said decision was challenged

before the High Court of Madras by filing writ. Learned single judge by

31
1998 (1) SCC 201.
32
2003 (2) SCC, 45.
33
(2003) 6 SCC, 581.

196
interim order, inter alia, directed the State Government that suspension and

dismissal of employees without conducting enquiry be kept in abeyance

until further orders and such employees be directed to resume duty. That

interim order was challenged by the State Government of Tamilnadu by

filing writ appeals. On behalf of the Government Employees, writ petitions

were filed challenging the validity of the Tamilnadu Essential Services

Maintenance Act, 2002 and also the Tamilnadu Ordinance No.3 of 2003.

The Division Bench of the High Court set aside the interim order

and arrived at the conclusion without exhausting alternative remedy of

approaching Administrative Tribunal, writ petitions were not maintainable.

The petitioners came up on appeal against the said order and for the same

reliefs, writ petitions under Article 32 of the Indian Constitution the

petitioner approached the Supreme Court.

In the above case the Court set about to answer two important

questions namely :

(a) Is there a fundamental right to go on strike ?

(b) In the instant case, do the employees have a statutory right

to go on strike ?

197
(a) Is there a fundamental right to go on strike ?

The Apex Court in the process of answering the same referred the

judgements of previous cases of Kameswar Prasad and others Vs. State of

Bihar and another34 wherein the Supreme Court held that there exists no

fundamental right to strike.

The Supreme Court quoted another judgement in the case of Radhey

Sham Sharma Vs. The Post Master General, Central Circle, Nagpur.35 The

fact of the case that the employees of the Telegraph Department of the

Government went on strike from the midnight of July 11, 1960, throughout

India and the petitioner was on duty on that day. As he went on strike, in

the departmental enquiry, penalty was imposed on him. The same was

challenged before the Honble Court. In that context it was contended that

Sec.3,4 and 5 of Essential Service Maintenance Ordinance No.1 of 1960

were violative of Fundamental Rights guaranteed by clauses (a) and (b) of

19 (1) of the Indian Constitution.

The court considered the said ordinance and held that Sections 3, 4

and 5 of the ordinance did not violate Fundamental Rights enshrined in Art

19(1)(a) and (b) of the Constitution of India.

34
1962 Supp. 3, SCR, 369.
35
1964 (7) SCR, 403.

198
 The Supreme Court reliance on the decisions of Ex-Capt. Harish

Uppal Vs. Union of India and Communist Party of India (M) Vs. Bharat

Kumar and others in coming to the conclusion that there exists no

fundamental right to strike.

(b) In the instant case, do the employees have a statutory right to go on

strike?

The Supreme Court of India observes that there is no statutory

provision empowering the employees to go on strike. Further it observes

that there is prohibition to go on strikes under the Tamilnadu Government

Servants Conduct Rules, 1973. Rule 22 provides that no government

servant shall engage himself in strike on incitements there to or in similar

activities36.

The Honble Supreme Court of India did not impose a blanket ban

on all strikes. The court further declares that the said strike to be illegal in

view of Rule 22 which prohibits government servants from going on strike.

36
L. Nageswara Rao, Right to Strike: National and International Perspectives Endowment
Lecture of Smt. Pemmaraju Hymavathi and Satyanaryana on 14-11-2003 pp. 7-9, at Acharya
Nagarjuna University, Guntur.

199
 Several decisions of the various High Courts in India as well as the

Supreme Court itself have adverted to and positively affirmed the right to

strike in so far as workmen are concerned.

5.6 Wage Structure Decision of the Judiciary

The concept of 'Minimum wage' was first evolved by International

Labour Organisation in 1928 with reference to remuneration of workers in

those Industries where the level of wages was substantially low and the

labour was vulnerable to exploitation, being not well organized and having

less effective bargaining power. As per the recommendations of Royal

Commission on Labour in India, a draft bill was considered by the Indian

Labour Conference in 1945, introduced in Indian Legislative Assembly in

1946 which was followed by the adoption of Minimum Wages Act, 1948.

The Act was enacted to secure the welfare of the workers in a competitive

market for a minimum limit of wages in certain employments.37

Wages means all remuneration capable of being expressed in terms

of money, which would if the terms of contract of employment, express or

implied were fulfilled, be payable to a person employed in respect of

employment or of work done in such employment. The Minimum Wages

37
Preamble of the Minimum Wages Act, 1948

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Act, 1948 provides for fixation and enforcement of minimum wages in

respect of scheduled employees to prevent sweating or exploitation of

labour through payment of low wages. The object of the set is to ensure a

minimum subsistence wage for workers.

The Minimum wage, as the name itself implies, represents the level

below which wages can not be allowed to drop. It is prescribed in order to

check :

a)The evil of sweating; and

b)For the benefit of workers who are not in a position to bargain with

their employer.38

In Randhir Singh v. Union of India case the Supreme Court observed

as39 it is true that the principle of 'equal pay for equal work' is not expressly

declared by out of the Constitution to be a fundamental right. But it

certainly is a constitutional goal. Article 39(d) of the Constitution proclaims

'equal pay for equal work for both men and women' as a Directive Principle

of State Policy. 'Equal pay for equal work for both men and women' means

equal pay for equal work for everyone and as between the sexes. Directive

Principles, as has been pointed out in some of the judgments of this Court

38
All India Reserve Bank Employees Association V. Reserve Bank of India, AIR 1966 SC 306.
39
(1982) 1 SCC 618: 1982-I-L.L.J-344

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have to be read into the fundamental rights as a matter of interpretation.

Article 14 of the Constitution enjoins the State not to deny any person

equality before the law or the equal protection of the laws and Article 16

declares that there shal1 be equality of opportunity for all citizens in

matters relating to employment or appointment to any office and the State.

These equality clauses of the Constitution must mean something to

everyone. To the vast majority of the people the equality clauses of the

Constitution would mean nothing if they are unconcerned with the work

they do and the pay they get. To them the equality clauses will have some

substance if equal work means equal pay construing Articles 14 and 16 of

the Constitution in the light of the Preamble and Article 39(d), it is of the

view that the principle 'equal pay for equal work' is deducible for those

articles and may be properly applied to cases of unequal scales of pay based

on no classification or irrational classification though those drawing the

different scales of pay do identical work under the same employer."

Again in U.P. Income Tax Department contingent Paid Staff Welfare

Association v. Union of India and Others40, the Apex Court having regard

to the principles as laid down above in, gave following relief in the ultimate

analysis:
40
(1987) Suppl. SCC 668.

202
 "We accordingly allow this writ petition and direct the respondents

to pay wages to the workmen who are employed as the contingent paid

staff of the Income Tax Department throughout India, doing the work of

Class IV employees at the rates equivalent to the minimum, pay in the pay

scale of the regularly employed workers in the corresponding

cadres"

The Apex Court repeatedly upheld the proposition of equal pay for

equal work in Bhagwan Dass and Others, v. State of Haryana and Others.41

The Apex Court has also observed that the Central Government could not

take any advantage of its dominant position to treat the work as casual arid

retain them on lower wages.42 In the leading case of Dhirendra Chamoli V.

State of U.P43 'the epitome of what was held is that casual workers could

not be denied same emoluments and benefits as admissible to temporary

employees on the premise that they had acquiesced to the employment with

full knowledge of their disadvantage. In Grih Kalyan Kendra Workers'

Union v. Union of India and Others44, the Apex Court quintessentially

opined that though on facts, no, discrimination was found, but the principle

of 'equal pay for equal work' was upheld and recognised where all were

41
AIR 1987 SC 2049
42
Bharathiya.Dak Tar Mazdoor Manch V. Union of India and Others, 1988-I-LLJ-370 SC
43
(1986) I SCC637: 1986-I-L.L.J -134
44
(1991) I SCC 619: 1991-I-L.L.J.-349

203
placed similarly and discharging same duties and responsibilities

irrespective of casual nature of work. In these judgments, this right had

been held to have assumed status of a fundamental right of' equality' in

Articles 14 and 16. In State of West Bengal v. Pantha Chatterjee and

Others45, the Apex Court followed the aforesaid decisions and held that the

part time Border Wing Home Guards (BWH.G) could not be treated

differently from the permanent staff of the B.W.H.G and are to be accorded

parity with them. The Apex Court confirmed the decision of the learned

judge of the Calcutta High Court to the effect that the part time workers are

entitled to be absorbed irrespective of the age that which would stand

waived.

Haryana and Others v. Jasmer singh and others46 laid down the

following principle as it is clear that the quality of work performed by different

sets of persons holding differ jobs will have to be evaluated. There may be

differences in educational or technical qualifications which may have a bearing

on the skills which the holders bring to their although the designation of the job

may be the same. There may also be other consideration which have relevance

to efficiency in service which may justify differences in pay scales on the basis

of criteria such as experience and seniority, or a need to prevent stagnation in

45
AIR 2003 SC 3569
46
1997-II-LLJ 667 SC

204
the cadre, so that good performance can be elicited from persons who have

reached the top of the pay scale. I There may be various other similar

considerations which may have a bearing on efficient ' performance in a job.

This Court has repeatedly observed that evaluation of such jobs for the

purposes of pay scale must be left to expert bodies and, unless there are any

malafides, its evaluation should be accepted."

When a daily wager accepts employment, he is presumed to be

aware of the nature of his employment and the consequences thereof. It is

therefore not permissible for the respondent workmen to claim parity with

regular employees and accordingly claim wages and allowances equal to

that of the regular employees."

The observation made by the Supreme Court in a judgment rendered

recently in the case of S.C. Chandra and Others v. State of Jharkhand and

Others47 are also noteworthy in this regard: The equation of posts and

salary is a complex matter which should be left to an exert body. The courts

must realize that the job is both a difficult and time consuming task which

even experts having the assistance of staff with requisite expertise have

found it difficult undertake. Fixation of pay and determination of parity is a

complex matter which is for executive to discharge.

47
AIR 2007 SCW 5480

205
 The Supreme Court in the Constitutional Bench comprising in five

judges in State of Karnataka V. Umadevi48 a case on regularization of daily

workers took a strong definitive stand censoring regularization of workers

by judiciary. Though a case not related with the payment of wage, it has

had a strong bearing on the labour decisions.

In a recent decision of the Supreme Court in U.P State Electricity

Board v. Pooran Chandra Pandey49, a two judges bench of the Apex Court

distinguished the decision of the same Court in Umadevi and held that the

petitioner therein should not be discriminated against vis-a-vis the original

employees of the Electricity Board since they have been taken over by the

Electricity Board 'in the same manner and position' and that the Board

cannot deny the benefit of regularisation to the petitioners who were

working from May 4th,1990 as employees of the Board. In the Pooran

Chandra Pandey's case, 34 petitioners who were daily wage employees had

prayed for regularisation of their services in the U.P State Electricity

Board. The Apex Court held that the decision in Umadevi's case cannot be

applied to a case where regularisation has been sought for in pursuance to

Article 14 of the Constitution. The Apex Court observed that the writ

petitioners have been working from 1985 i.e. they have put in about 22

48
(2006) 4 SCC I
49
2007 (4) KLT 513 (SC)

206
years service and it will surely not to be reasonable if their claim for

regularisation is denied even after such a long period of service. The Apex

Court further held that apart from discrimination, Article 14 of the

Constitution of India will also be violated on the ground of arbitrariness

and unreasonableness if employees who nave put in such a long service are

denied the benefit of regularization.

As recognized by many international instruments and declarations,

labourers are the most vulnerable group in any society. The intention of the

Supreme Court to provide greater flexibility for the vibrant economic

growth by removing the obstacles must be balanced by taking an equitable I

approach accommodating the higher goals of social justice. The Hon'ble

Supreme Court has itself on numerous occasions championed the rights of

the workers on numerous occasions underscoring the reason for such a

protection because of their vulnerable position and reading the same into

the Constitution50.

50
Rasheed Shaik, Employer to pay Minimum Wage or shut down his business. 2010-III-
L.L.J.p.42

207