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The Industrial Disputes Act, 1947
Section 2 in The Industrial Disputes Act, 1947
Article 19 in The Constitution Of India 1949
E. Mahboob Saheb vs N. Subbarayan Chowdhary & Ors on 18 December, 1981
Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha on 19 November, 1979

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Kerala High Court
Kerala State Electricity Workers ... vs Kerala State Electricity Board ... on 9 November, 1982
Equivalent citations: (1983) IILLJ 30 Ker
Author: Narendran
Bench: Narendran



JUDGMENT
 

Narendran, J.

1. The points that arise for consideration in these cases are: Whether the Assistant Engineers of the Kerala State Electricity Board are workmen as defined iin Section 2(s) of the Industrial Disputes Act, 1947, for short the Act? Even if they are not workmen can the workmen of the Board raise a dispute on behalf of the Assistant Engineers also if they have got a community of interest with the Assistant Engineers? Will the words 'any person' in Section 2(k) of the Act defining "industrial dispute" mean that a dispute can be raised by workmen on behalf of employees other than workmen? If an Assistant Engineer joins a strike when the unions of workmen and Assistant Engineers call for a token strike for a day, can he be proceeded against for violation of rule 86 of the Kerala Government Servants' Conduct Rules, 1960? Is the suspension discriminatory if only some of the Assistant Engineers who joined the strike were suspended?

2. Petitioners 1 and 4 in O.P. No. 5976 of 1982 are two unions of employees of the 1st respondent - Kerala State Electricity Board, for short the Board. The other petitioners in O.P. No. 5976 and all the petitioners in O.P. Nos. 6208 and 6404 of 1982 are Assistant Engineers of the 1st respondent Board. The grievance of the petitioners is against the orders of suspension issued by the Chief Engineers of the Board under whom the petitioners-Assistant Engineers work. These orders of suspension are produced as Ext.P4 series in O.P. No. 5976 of 1982 and as Ext. P3 series in the other two original petitions. The designation of the post of Assistant Engineer as originally juinior Engineer. The Industrial Tribunal, Alleppey in its Award in I.D. 45 of 1958 dated 30th October, 1961 held that Junior Engineers were workmen within the meaning of the term 'workmen' in the Industrial Disputes Act, 1947. The duties of Assistant Engineer as defined in the Annexure to Order EB-II/24780/75 dated 25th February, 1977 are the same as those of the Junior Engineers before the post was redesignated as Assistant Engineer. In O.P. No. 947 of 1981 this Court held that the order dated 19th January 1980 insisting that a promotee from the category of workman to an officer will take charge of the higher post after relinquishing his or her membership and connection with the trade unions is violative of Article 19(1)(c) of the Constitution of India and opposed to the principles of natural justice and quashed that order. Under the guise of introducing an amendment to the Kerala Government Servants' Conduct Rules, 1960 as adopted by the Board, the Board issued Ext. PI order dated 17th May, 1982 to circumvent the decision of this Court in the above O.P. Against Ext.Pl the 1st petitioner in O.P. No. 5976 of 1982 and the representatives of the two other unions filed O.P. No. 4019 of 1982 before this Court, and this Court has stayed Ext. PI.

3. The employees of the Board gave Ext.P-2 notice of strike under Rule 7 of the Kerala State Electricity Board Industrial Disputes Rules through 6 of their representative trade unions. Because of the uncompromising attitude the Minister for electricity took, the employees had no other alternative but to resort to a token strike on 5th August, 1982. The petitioners who are Assistant Engineers gave individual notices to their immediate superiors indicating that they were joining the strike on 5th August 1982. Ext P-3 series produced in OP. No. 5976 of 1982 are those notices. There was absolutely no interruptson of power supply on account of the absence of the petitioners due to their participation in the token strike. The Board issued confidential circulars that the token strike should be made use of to take vindictive action against the provisional hands, casual workers and the officers in charge of the sections, sub-stations etc. In pursuance of the above circulars, the petitioners who are Assistant Engineers have been served' with notices suspending them from service for their participation in the token strike held on 5th August 1982. Ext. P-4 series are the notices issued to petitioners 2, 3 and 5 in OP. No. 5976 of 1982. It was under the above circumstances that the petitioners approached this Court with this original petition.

4. A counter-affidavit has been filed in OP. No. 5976 of 982 by respondents 1 and 2. In the counter-affidavit it is stated: The Kerala State Electricity Workers' Federation and the Kerala State Electricity Board Workers' Association are not competent to challenge the validity of the impugned orders of suspension. The above two unions, according to their own bye-laws, can have only workmen as its members. Petitioners 2,3 and 5 in OP. No. 5976 of 1982 and the petitioners in the other two original petitions are Assistant Engineers. By Ext. R-2 order dated 25th February, 1977 the Junior Engineers were redesignated as Assistant Engineers. By Ext. R-1 the Assistant Engineers were allocated new duties and responsibilities apart from the duties and responsibilities of the Junior Engineers. Hence the Assistant Engineers are not workmen as defined in the Industrial Disputes Act. The right to strike is conferred on an employee impliedly by the provisions of the Industrial Disputes Act and that too only to those who are workmen as defined in the Industrial Disputes Act. The petitioners who are Assistant Engineers have no right to strike and if they absented themselves from work claiming that they were on strike, their action was unauthorised and wilful abstension from work, which is major misconduct. The Assistant Engineers have been kept under suspension for unauthorised absence from duty on 5th August, 1982. The averment in the original petition that there was no interruption in power supply due to their absence is not correct. Misconduct on the part of the petitioners Assistant Engineers are very serious and it was necessary in the interest of maintenance of discipline and for a proper conduct of the disciplinary proceedings against them that they should be kept under suspension. Only Assistant Engineers who are heads of offices, sections and sub-stations were kept under suspension. This is because they are a different class whose unauthorised absence from work will have serious consequences. Assistant Engineers who do not belong to the' above said category have not been kept under suspension. In their case, only a day's pay and allowances were cut. The question whether the Assistant Engineers of the Board are workmen or not as defined in the Industrial Disputes Act is a mixed question of fact and law and only the Industrial Tribunal can decide such a question.

5. The petitioners have filed a reply affidavit and along with the reply affidavit a confidential circular issued by the Chief Engineer (Distribution), Kozhikode on 29th July, 1982 in connection with the strike in question has been produced as Ext. P-5. In the reply affidavit it is stated: It is not necessary that the striking employees shall be workmen as defined in the Industrial Disputes Act. The only requirement is that they should be persons employed. In none of the sections/substations where the suspended Assistant Engineers were working was any dislocation of work or power supply occasioned due to their participation in the strike. It is only because of the refusal and unexplained delay of the Board even in implementing terms of awards and settlements that the unions were compelled to resort to the extreme step of a token strike on 5th August 1982. The controlling officers have reported after preliminary inquiry in all these cases of suspension that there is no other charge against the Assistant Engineers than their participation in the strike. The statement in the counter affidavit that the confidential circular had nothing to do with the suspension is false as is revealed from Ext. P-5.

6. On the question whether the Assistant Engineers are workmen, the contention of the learned Counsel for the petitioners was that Junior Engineers of the Board were declared as workmen as defined in Section 2(s) of the Act by the Industrial Tribunal, Alleppey, The posts the petitioner Engineers hold are only the same posts redesig-nated as Assistant Engineers and hence Assistant Engineers are only workmen. According to the learned Counsel Ext R-l issued by the Board cannot in any way change the position. The learned Counsel for the Board contended that not only the post was redesignated as Assistant Engineers, by Ext. R-l new duties and responsibilities were also allocated to the Assistant Engineers and hence the Assistant Engineers cannot be workmen. In support of his contention, reference was also made to the Full Bench Decision of this Court in Umayammal v. State of Kerala 1983-I L.L.J. 267 where this Court held that Assistant Engineers of the Public Health Engineering Department hold supervisory posts and will not be workmen. The salary of the Assistant Engineers is above Rs. 500/-, Going by Annexure-I to Ext. R-l which enumerates the powers and duties of the Assistant Engineers it cannot be said that they have no supervisory capacity. So, the Assistant Engineers are employees who come under the excluded category of Section 2(s)(iv) of the Act and are not workmen.

7. Another contention raised by the learned Counsel for the petitioner was that in view of the fact that the Board suspended only a few of the Assistant Engineers and did not suspend all of them who joined the strike, the orders of suspension were discriminatory and hence liable tobe set aside. The learned Counsel for the Board pointed out that the 19 Assistant Engineers suspended were persons either in charge of Electrical sections or in charge/operators of Electrical sub-stations and their absence had very serious consequences in the distribution of power in the area. Hence, according to the learned Counsel, the misconduct on their part was far more serious than the unauthorised absence of other Assistant Engineers who were not posted in such important positions. It cannot be said that there is no substance in the above contention of the learned Counsel. Considering the responsibility that the Assistant Engineers in charge of Electrical sub-stations and Electrical sections, they stand as a class distinct from the other Assistant Engineers who also joined the strike. So the suspension of these Assistant Engineers wihout suspending others cannot be said to be discriminatory and the orders of suspension cannot be interfered with on that ground.

8. The learned Counsel then contended that going by the definition of strike in Section 2(q) of the Act it cannot be said that only workmen can partake in a strike. In this connection, reference was also made to Ss.24,25, 26, 31,10A(4A), 18(2), 18(3)(d) and 19 of the Act. The learned Counsel then made pointed reference to Section 2(k) of the Act which defines 'industrial dispute and contended that workmen can raise a dispute on behalf of non-workmen also if they got a community of interest with the non-workmen. Hence, according to the learned Counsel, if workmen can go on a strike raising a dispute the non-workmen also have such an implied right to strike. The next leg of the argument of the learned Counsel was that in that case the petitioners cannot be suspended for joining a token strike for a day and that too with proper notice. In support of his contentions the learned Counsel relied on certain decisions. In A.P.S.R.T.C.E Union v. A.P.S.R.T.C. 1970 Lab L.C. 1225 Chinnappa Reddy, J. as he then was has said:

A right to strike is labour's ultimate weapon and in the course of a hundred years it has emerged as the inherent right of every worker. It is an element which is of the very essence of the principle of collective bargaining and as stated by an eminent English Judge the right to strike is 'an implication read into the contract by the modern law as to trade disputes.

In Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha 1980-I L.L.J. 137 Krishna Iyer J. speaking for the Court has said:

We cannot agree that mere failure to report for duty when a strike is on necessarily means misconduct.

In All India R.B.E. Association v. Reserve Bank of India 1965-II L.L.J. 175, the Supreme Court held:

The word 'person' has not been limited to 'workmen' as such and must, therefore, receive a more general meaning. But it does not mean any person unconnected with the disputants in relation to whom the dispute is not of the kind described. It could not have been intended that though the dispute does not concern them in the least, workmen are entitled to fight it out on behalf of non-workmen..........it may, however, be said that if the dispute is regarding employment, non-employment, terms of employment or conditions of labour of non-workmen in which workmen are themselves vitally interested, the workmen maybe able to raise an industrial dispute. Workmen can, for example, raise a dispute that a class of employees not within the definition of workman should be recruited by promotion from workmen. When they do so, the workmen raise a dispute about the terms of their own employment though incidentally the terms of employment of those who are not workmen is involved. But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment those workmen have no direct interest of their own. What direct interest suffices is a question of fact, but it must be a real and positive interest and not fanciful or remote.

In A.I.B.E. Association v. N.I. Tribunal 1961-II L.L.J. 385, it has been held:

The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid down in Clause (4) of Article 19 but totally different considerations.

In Bangalore Water Supply v. A. Rajappa 1978-I L.L.J. 349 Krishna Iyer, J. has cited with approval the construction given to the word 'industry' by Issacs and Rich JJ. which reads:

How can we, conformably to recognised rules of legal construction, attempt to limit, in an instrument of self-government for this Continent, the simple and comprehensive words 'industrial disputes' by any apprehension of what we might imagine would be the effect of a full literal construction, or by conjecturing what was in the minds of the framers of the Constitution, or by the forms industrial disputes have more recently assumed? 'Industrial warfare' is no mere figure of speech. It is not the mere phrase of theorists. It is recognised by the law as the correct description of internal conflicts in industrial matters.

In Workmen v. Greaves Cotton & Co. Ltd. 1971-II L.L.J. 479 the Supreme Court has held:

It would therefore appear that the consistent view of this Court is that non-workmen as well as workmen can raise a dispute in respect of matters affecting their employment, conditions of service etc., where they have a community of interests, provided they are direct and are not remote. As stated in the Reserve Bank of India's case, 1965-II L.L.J. 175 'workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment, those workemn have no direct interest of their own'. At any rate as long as there are persons in the category of workmen in respect of whom a dispute has been referred it cannot be said that the Tribunal has no jurisdiction notwithstanding the fact that some or any of them may become non-workmen during the pendency of the dispute. In these circumstances the Tribunal in our view was wrong in holding that the dispute regarding supervisors was not maintainable merely because a demand was made for a higher wage scale, which would take them out of the category of workmen.

In Standard Vacuum Refg. Co. v. Their Workmen 1960-II L.L.J. 233 the Supreme Court held:

We have therefore to see whether the respondents who have raised this dispute have a direct interest in the subject-matter of the dispute or a substantial interest therein in the sense that the class to which the respondents belong is substantially affected thereby and whether there is community of interest between the respondents and those whose cause they have espoused. There can be no doubt that there is community of interest in this case between the respondents and the workmen of Ramji Gordhan & Co. They belong to the same class and they do the work of the same employer and it is possible for the company to give the relief which the respondents are claiming. The respondents have in our opinion also a substantial interest in the subject-matter of the dispute, namely, the abolition of the contract system in doing work of this kind.

9. The learned Counsel for the respondent-Board contended that in India there is no fundamental right to strike work for anybody including a workman. According to the learned Counsel, the implied right to strike conferred by the Industrial Disputes Act is on the workmen who raise a dispute and this right itself is subject to the restrictions imposed by law. In support of his contentions reference was made by the learned Counsel to two decisions of the Supreme Court. In A.I.B.E. Association v. N.I. Tribunal (supra) it has been held:

On the construction of the Article, therefore apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of Sub-clause (c) of Clause (1) of Article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective barginining or to strike, either as part of collective bargaining or otherwise. The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid down in Clause (4) of Article 19 but by totally different considerations.

In O.K. Ghosh v. EX. Joseph 1962-II L.L.J. 615 the Supreme Court had occasion to consider the validity of Rule 4A of the Central Civil Services (Conduct) Rules, 1955. The Court held:

In striking down the rule in this limited way, this Court made it clear that in so far as the said rule prohibits a strike, it cannot be struck down for the reason that there is no fundamental right to resort to a strike. In other words, if the rule was invalid against a Government servant on the ground that he had resorted to any form of strike specified by R 4A, the Government Servant would not be able to contend that the rule was invalid in that behalf.

In Radhey Shaym v. P.M.G. Naepur AIR 1965 SC 311 the Supreme Court held that there is no fundamental right for the Indian Citizen to go on strike and the right to strike if available can also be curtailed by law. In this connection reference was made to Rule 86 of the Kerala Government Servants Conduct Rules adopted by the Board by virtue of the powers vested in it under Section 79C of the Electricity Supply Act. The learned Counsel contended that Rule 86 prohibits a strike by the petitioners Engineers and that the validity of that rule is not challenged in these cases. Reference was then made to Premier Automobiles v. K.S. Wadke 1975-II L.L.J. 445 wherein the Supreme Court held that if the right which is sought to be enforced is a right created under the Industrial Disputes Act, 1947 such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute as the case may be. The learned Counsel then pointed out that as the Assistant Engineers are not workmen they cannot raise an industrial dispute against the action if any taken against them for resorting to the strike. So, according to the learned Counsel, employees other than workmen have no right to strike or join a strike launched by workmen. Reference was also made to Workmen, D. T.E, V. Management D.T.E. 1958-I L.L.J. 500 wherein the Supreme Court held that workmen can raise an industrial dispute on behalf of non-workmen also under certain circumstances. In the above decision the Supreme Court construed Section 2(k) of the Act which defines 'industrial dispute' and held:

The very circumstance that in the second part of the definition clause the expression used is between employers and workmen or between workmen and workmen while in the third part the expression used is 'any person' indicates that the expression 'any person' cannot be completely equated with 'any workmen' .....If the expression 'any person' in the third part of the definition clause were to be strictly equated with 'any workman' then there could be no industrial dispute, prior to 1956....The Act avowedly gives a restricted meaning to the word 'workman' and almost all the provisions of the Act are intended to confer benefits on that class of persons who generally answer to the description of workmen. The expression 'any person' in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest-with whom they have under the scheme of the Act, a community of interest. Our reason for so holding is not merely that the Act makes a distinction between workmen and non-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, non-employment, terms of employment or conditions of labour of persons who belong to the supervisory staff and are, under the provisions of the Act, non-workmen on whom the Act has conferred no benefit, who cannot by themselves be parties to an industrial dispute and for whose? representation the Act makes no particular provision? We venture to think that the answer must be in negative....We recognize that solidarity of labour or general interest of labour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen but the principle of solidarity of the labour movement or general welfare of labour must be based on or correlated to the principle of community of interest; the workmen can raise a dispute in respect of those persons only in the employment or non-employment or the terms of employment or the conditions of labour of whom they have a direct or substantial interest.

In para 20 of the same judgment the Supreme Court further held:

We think, however, that the crucial test is one of community of interest and the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances.

The learned Counsel further contended that the scheme of the Industrial Disputes Act is such that a strike can be resorted to only by workmen who can raise a dispute and the State has power to refer that dispute and thus end the strike. According to the learned Counsel, the State has no power under the Act to refer a dispute raised by non-workmen and prevent the continuance of a strike by employees who are not workmen. It was also contended that Section 2(q) of the Act which defines strike does not confer any right on an employee to strike. The learned Counsel also pointed out that either in Dimakuchi Tea Estate case 1958-I L.L.J. 500 or in the Reserve Bank of India case 1965-II L.L.J. 175 and in Greaves Cotton & Co. case 1971-II L.L.J. 479 where the dictum laid down in Dimakuchi Tea Estate case was followed, the Supreme Court did not interfere with the finding that in those cases the workmen had no right to raise a dispute on behalf of the non-workmen also.

10. On an anxious consideration of the contentions of the learned Counsel on both sides, I come to the following conclusion. No doubt, strike is a powerful weapon in the process of collective bargaining by the working class all over the world. In India nobody including workman has a fundamental right to strike. At 1 the same time, there is an implied right to strike conterred by the Industrial Disputes Act. 1947 on workmen raising a dispute. This right of the workmen is also controlled by the Act. The Act makes provision for the investigation and settlement of industrial disputes and certain other purposes ancillary and incidental to the investigation and settlement of disputes. But the right is conferred only on workmen raising a dispute and on nobody else. The expression 'of any person' happened to be included in the definition of 'industrial dispute' in Section 2(k) of the Act because without that no dispute could be raised in respect of a dismissed, discharged or retrenched workman till the amendment of Section 2(s) defining 'workman' by the Amending Act 36 of 1956. The Supreme Court has held that workmen can raise a dispute on behalf of non-workmen also if they have got a community of interest with the non-workmen in view of the above expression 'of any person' appearing at the end of the defining Clause 2(k) of the Act. But the Supreme Court has not held that non-workmen can themselves or along with workmen raise a dispute. As long as non-workmen cannot raise a dispute, they will not have any implied right to strike even if their cause has been taken up by the workmen. Even otherwise, going by the scheme of the Act, the right of direct action conferred on the workmen cannot be extended to employees other than workmen because that will result only in anarchy in the industrial world. So, even if it is assumed without deciding that as far as the dispute in question there is a community of interest between the workmen of the Board and the petitioners-Assistant Engineers, it cannot be said that the Assistant Engineers could join the strike. If they could not join the strike they cannot take shelter under the Act when the Board takes action against them for their unauthorised absence from duty.

11. For the reasons given above, the suspension orders challenged in these original petitions cannot be interfered with. The original petitions are dismissed. No costs.