Workers of the Industry Colliery, Dhanbad v. Management of the Industry Colliery

Judgment

Ajtnsr Singh The State of Punjab. Mahajan J. Dee. 12 [1953] enmity. He stuck to that reply in the Court of Session after fully understanding what he was asked. It is wejl settled that every error or omission not in compliance with the provisions of section 342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities, and, as held in Tara Singh's case('), the question, whether $he trial is vitiated, in each case depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused. We are of the opinion that the disregard of the provisions of section 342 in this case is not so gross as would justify our quashing the conviction and ordering a retrial. The result is that we uphold the judgment of the High Court and dismiss the appeal. Appeal dismissed. Agent for the appellant: R. S. Gheba. Agent for the respondent : G. H. Ra}adhyaksha.

WORKERS OF THE INDUS'l'RY COLLIERY, DHANBAD MANAGEMEN'l' OF 'l'HE INDUSTRY COLLIERY. [MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.] Ind1<strial Disputes Act, 1947, ss. 20 (2) (b), 22 ( 1) ( d), 24- Gonciliation proceedings-Withdrawal of workers-Strike after Conciliation Officer has made his report but befo1·e it is received by Governnient-:::Legality of strike-Chief Labo~ir Oo1n1nissioner whether agent of Government. A conciliation proceeding cannot be deemed to have concluded under s. 20 (2) (b) of the Industrial Disputes Act, 1947, in a case where no settlement has been arrived at, as Soon as the Conciliation Officer sends his report. It can be deemed to have concluded only when the report is actually received by the appropriate Governme:nt. (1) (1951) S.C.R. 729. S.C.R. The Chief Labour Commissioner, New Delhi, is not, in the absence of any express delegation of powers by the Central Government, the agent of the latter for the purpose of receiving the report of a Conciliation Officer.

The appellants who had sent notice of their intention to strike declined to parti'cipate in conciliation proceedings which were initiated by the Regional Labonr Commissioner, and the latter sent his report to the Chief Labour Commissioner, New Delhi, on October 22, 1949. The report was received by the Chief Labour Commissioner on October 25, but a copy of the report was sent by the Chief Labour Commissioner, and received by the Ministry of Labour, only on November 17. Meanwhile the appellants went on strike on November 7: Held, confirming the decision of the Industrial Tribunal, that under s. 20 (2) (b) of tbe Act the conciliation proceeding held by the Regional Labour Commissioner concluded only on November 17 when his report was received by the Central Government, and as the appellants went on strike before that date, it was a strike during the pendency of conciliation proceedings and therefore illegal under s. 22 (1)

(d) of the Act, The provisions of several sections of the Industrial Disputes Act, 194 7, show that time is of the essence of the Act and the requirements of its relevant provisions must be pnnctually obeyed and carried out, if the Act is to operate harmoniously. CrvrL APPELLATE JURISDICTION: Civil Appeal No. 133 of 1951. Appeal by special leave granted by the Supreme Court on the 1st December, 1950, from the Judgment dated the 24th April, 1950, of the Central Government Industrial Tribunal, Dhanbad, in Appeal No. 1 of 1950, arising out of Order dated the 2nd February, 1950, of the Regional Labour Commissioner (Central), Dhanbad. N. 0. Chatterjee (S. L. Ohhibber, with him) for the appellants. S. P. Sinha (S. N. Mukherjee, with him) for the respondent. 195'J. December 12.

The Judgment of the Court was delivered by DAS J.-This appeal by special leave is directed ll.gll.in'tit thB dBcision dated April 24, 1950, of the Central Government Industrial Tribunal at Dhanbad confirming the decision dated February 2, 1950, of Workers of tlte Industry Colliery, Dhanbad Managerne11t of the Industry Colliery. [1953] J95i the Regional Labour Commissioner (Central), Dhanbad, which had declared the one-day strike by the ll'"orket'S of the Industry appellants that took place on November 7, 1949, to ·Colliery, be an illegal strike. 'rhe relevant facts are as fol- Dhanbad lows: - Mana;;mcnt of On October 13, \949, the appell~nts through the the Industry Secretary of their llmou gave a notwe to the respond- Ool!iery. ents, nnder section 22(1) of the Industrial Disputes Act, 1947, that they proposed to call a one-day strike Dos J. on the expiry of November 6, 1949, for the fulfilment of demands, 16 in number, noted therein.

This strike notice was, in accordance with rule 85 of the rules framed under the Industrial Disputes Act. 1947, sent to (1) the Conciliation Officer (Central), Dhanbad, (2) the Regional r~abour Commissioner (Central), Dhanbad, (3) the Chief Labour Commissioner, Department of Labour, Government of India, New Delhi, (4) Secretary, Ministry of Labour, Government of India, New Delhi, and (5) A.D.C., Dhanbad. This notice was received at the office of the Regional Labour Commissioner' (Central), Dhanbad, on October 15, 1949. The Regional Labour Commissioner. (Central) held conciliation proceedings at Dhanbad OJ;J. October 22, 1949, but the appellants, by their letter of the same date, declined to participate in the proceedings alleg- . ing that they were convinced that nothii:ig 'ivould come out of the same and that the proceedings should, therefore, be considered "to be ceased." On the same day the Regional !Jabour Commissioner (Central), Dhanbad, addressed letter No. RLC/CON 5 ('roken)

7910to the Chief Labour Commissioner, New Delhi, stating that after receipt of thil notice of strike he had issued notice to the parties for conciliation, that the employers' representatives were ready to discuss the demands but the Union's representative filed a petition in writing saying that they did not want to . participate in the proceedings and that no fresh material had been placed before him to change his view and that he was not in favour of recommending a reference of the demand to the Industrial Tribunal. '.!'he letter ended with a request that the Government S.O.R. may be informed of the situation. It appears that this report was received in the office of the Chief N 0 Wo1·kers of the Labour Commissioner, ew Delhi, on c~ober 25, industry 1949.

Although the Chief Labour Commissioner, •in Colliery, his letter of November 17, 1949, to the Regional Dhanbad Labour Commissioner (Central), Dhanbad, states that the contents of the latter's report had already been Managem ... t 0f . t d t th M' . t f L b the industry commumca e o e 1 mis ry o a our,. a copy o Colliery. the report was actually sent to and received by the Ministry of Labour only on that day. In the mean- Das J. time on November 7, 1949, the appellants about 700 in number, went on one-day strike as per their strike notice. Apparently the respondents contended that the strike was illegal and they made an application, under section 8 (2) of the Coal Mines Provident Fund and Bonus Scheme Act, 1948, to the Regional Labour Commissioner (Central), Dhanbad, for a decision on the question whether the strike was legal or illegal. By his order dated February 2, 1950, the Regional Labour Commissioner (Central), Dhanbad, declared that the strike was illegal.

Being aggrieved by the aforesaid decision the appellants, under section 8 ( 4) of the last mentioned Act, preferred an appeal to the Central Government Industrial Tribunal at Dhanbad which, however, also held that the strike was illegal and that the conclusions arrived at by the Regional Labour Commissioner (Central) were correct and accordingly dismissed the appeal. The appellants thereafter applied for and obtained special leave to appeal to this Court . The only question raised on this appeal is whether the strike was illegal. Section 24 (1) of the Act 'provides, inter alia, that a strike shall be illegal if it is commenced or declared in contravention of section 22 or section 23 of the Act. Section 22 (1) provides as follows:- " 22. (1) No person employed in a public utility service shall go on strike in breach of contract- (a) without giving to the employer notice of strike, as hereinafter provided, within six wee)rs before E1triking; or 5ii [1953]

(b) within fourteen days of giving such notice; or ·rvorkers of the Industry (c) ·before the expiry of the date of strike speci- . Colliery, fi&d in any such notice as aforesaid; or Dhanbad (d) during the pendency of any conciliation prot 1 ceedings before a conciliation officer and seven days lt anage1ne1~ o 111, Industry a ter t e cone us10n o sue procee mgs. ·Colliery. Notice of strike having been given in terms of clause (a) and 14 days havingelapsedafterthegiving ·Das J. · of such notice as required by clause (b) and the. actual strike having taken place after· November 6, 1949, being the date specified in the strike notice, the only other question for consideration is whether the strike took place during the pendency of any conciliation proceedings before a Conciliation Officer, and seven days after the conclusion of such proceedings.

Under section '20(1) a conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike under section '2'2 is received by the Conciliation Officer. In this case the strike notice was received by the Regional Labour Commissioner (Central) who is the Conciliation Officer, on October 15, 1949, and the conciliation proceedings, therefore, commenced on that date under section '20(1). 'rhe relevant portion of sub-section ('2) of that section runs as follows:- " ('2) A conciliation proceeding shall be deemed to have concluded- (a) ................................ ., (b) where no settlement is arrived at, when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be, or (c) ................................. "

The Regional I.Jabour Commissioner ( Centra 1), who is the Conciliation Officer in this dispute, is required by section l '2 to hold conciliation proceedings in the prescribed manner and, without delay, investi$ate the dispute anq to do all such thin~s as j S.C.R. SUPREME COUR'r REPORTS he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. In this case the Regional Labour Commissioner (Central) held conciliation proceedings tin October 22, 1949, but no settlement could be arrived at as the appellants declined to take part in the proceedings on the ground that they were convinced that nothing would come out of it.

That being the position, under section 12 ( 4) it became the duty of the Regional Labour Commissioner (Central) to "as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which, in this case, a settlement could not be arrived at". Subsection (6) of this section requires that the report shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government. As already stated, the conciliation proceedings commenced on October 15, 1949. The report, therefore, was to be submitted within fourteen days from that date.

In point of fact the report was sent by the Regional Labour Commis- . sioner (Central) to the Chief Labour Commissioner, New Delhi, on October 22, 1949 (which was well within 14 days from the commencement of the conciliation proceedings), with the request that the Government may be informed of the situation. Under sub-section ( 4) the report has to be sent to the " appropriate Government " which according to the definition under section 2 (a) means, in relation to an industrial dispute concerning a mine, the Central Government. The Regional Labour Commissioner (Central) did not send the report direct to Central Government but sent it to the Chief Labour Commissioner, New Delhi, in accordance with what has been called the usual course and routine of Workers of the Industry Colliery, Dha11bad if!anageine1tt of the Industry Colliery. Das J, SUPREME COUR'l' REPOR'l'S [1953] 196• official busiuess.

The report, however, was received by the Central Government on or about November Workers of the Industry 17, 1949, and it is only on such receipt th~,t the con- Golliery. cniation proceedings are to be deemed to have con- Dhonbad eluded according to the provisions of section 20(2) (b). Prima. facie, therefore, the strike which took place Management of on November 7 1949 was during the pendency of the the Industr·y ·1· t• h Id b Colliery. conm 1a 10n procee mgs as y t e aut on 1es below. Das J. Shri N. C. Chatterjee, however, argues that in point of fact the conciliation proceedings came to an end when the appellants had withdrawn from the proceedings and the Regional Labour Commissioner (Central) had sent his report. It is by a legal fiction, introduced by section 20 (2) (b), that the conciliation proceedings are prolonged until the actual receipt of the report by the appropriate Government. According to Shri N. C. Chatterjee the conciliation proceedings should be held to terminate when the Regional Labour Commissioner (Central) sent his report within fourteen days of the commencement of the conciliation proceedings.

The difficulty in accepting this argument is that while the word "send" is used in section 12 (4) and the word" submitted" in section 12(6), the word used in section 20 (2) (b) is" received". That word obviously implies the actual receipt of the report. To say that the conciliation proceedings shall be deemed to have concluded when the report should, in the ordinary cour.se of business, have been received by the appropriate Government would introduce an element of uncertainty, for the provisions of section 22 (1) (d) clearly contemplate that the appropriate Government should have a clear seven days' time after the conclusion of the conciliation proceedings to make up its mind as to the further steps it should take. It is, therefore, necessary that the beginning of the seven days' time should be fixed so thatJ there would be certainty as to when the seven days' time would expire. It is, therefore, provided in section 20 (2)

(h) that the proceedings shall be deemed to have s.c.:R. concluded, where no settlement is arrived at, when the report is actu.ally received b.y the appropriate Work;;;of the Government. Shn N. C. Chatteriee on the other Industry hand strongly urges, and not without some force, Collier~. that on that construction it may be possible for the Dhanbad Government or its officers to withhold the report designedly or the report may be lost in course of Mthana1gedmentt of 11 ft th n us ry transit or may e actua y receive a er e expiry Colliery. of the date fixed for the strike in the notice under section 22 (1). Shri N. 0. Chatterjee also points out Das J. that it will not be possible for the workers to know when the report is actually received and their right to strike may thus be taken away from them. Shri N. O. Chatterjee contends that the Ql-overnment cannot take advantage of its own wrong. While we feel considerable force in Shri N. C. Chatterjee's argument based on hardship we are bound to assume that the public officers concerned would act fairly and properly.

Further, it is not a case of the Government taking advantage of its own wrong a.s suggested by Shri N. C. Chatterjee, for here we are concerned with a dispute between the employers and the employees and there is no material before us to justify our attributing the misdeeds, if any, of the Regional Labour Commissioner (Central) or of the Chief Labour Commissioner, to the respondents, the employers who are entitled to take their stand on the language of the law. The Court can only construe the statute as it finds it and if there is any defect in the law it is for other authority than this Court to rectify the same. Shri N. C. Chatterjee also urges that the Regional Labour Commissioner (Central) should have, under section 12, sent his report to the appropriate Government, which in this case means the Central Government, and he should not have sent the report to the Chief Labour Commissioner.

Assuming that that is the position then the fact will still remain that the Central Government did not receive the report and, therefore, the conciliation proceedings did not come to an end when the strike took place. Shri . [1953] N. C. Chatterjee also suggests that the Chief Labour Commissioner should have returned the report to the Workers of the fodustry Regional Labour Commissioner (Central) because Colliery, urfder the law the report should not have been made Dha,.bad to him. He, however, did not return the same to the Regional Commissioner but took upon himself to for- Ma .. agcment of ward the same to the Labour Ministry. In the cirthe Industi·y Sh . N C Ch CoU-e , cumstances, 1 n atterJee urges, ou t e 'ry. authority of Ohattirbhuj Rani Lal v. Secretary of State Da• J. for Indin ('),that the Chief Labour Commissioner must be deemed to be the agent of the Central Government for the purpose of receiving the report. We adjourned this case in order to enable Shri N. C. Chatterjee to ascertain whether there was any delegation of authority in this behalf by the Central Government to the 'Chief Labour Commissioner.

Shri N. C. Chatterjee has not been able to discover any such delegation of authority. It seems obvious to us that the Chief I"abonr Commissioner cannot possibly be regarded for this purpose as the Central Government. In point of fact by a notification in the Gazette of India dated April 5, 1947, the Chief Dabour Commissioner has heen appointed as a Conciliation Officer and, therefore, in conciliation proceedings conducted by· him he has to submit his reporb to the Central Government. It follows, therefore, that the Chief Labour Commissioner must be an authority separate from the Central Government.

According to rule 85 to which reference has been made the strike notice has to be sent, amongst others, to the Chief r~abour Commissioner as well as to the Department of Labour of the Government of India, which again indicates that the two are different entities. 'l'he Chief J1abour Commissioner is, therefore, only the channel or post office through which correspondence between the Regional Labour Commissioner (Central) and the Central Government is to pass and he cannot possibly be regarded as an agent of the Central Government for the purpose of receiving the report. The Chief Labour Commissioner S.C.R. SUPREME COUR'r REPORTS being the official channel the ruling relied upon by Shri N. C. Chatterjee can have no application to the facts crf this case. Woi·kers of the J,,dustry For reasons stated above we are of opinion that Colliery, the conclusions arrived at by the authorities below Dhanbad' on this point are correct and that this appeal must b d.

I th t Management of ism1sse . n e yecu11ar ctrcums ances o t e the Industry case, however, we think that there should be no . Colliery. order as to costs and the parties should bear their own costs. . Dai J. Before concluding we must draw the attention of the authorities concerned to the slack and unbusinesslike manner in which the matter was dealt with in the office of the Chief Labour Commissioner. The Act requires that the Conciliation Officer must submit his report within 14 days from the commencement of conciliation proceedings and then on receipt of the report by the appropriate Government the conciliation proceedings are to be deemed to have concluded.

Although factually the conciliation proceedings terminate when a settlement is arrived at before the Conciliation Officer or when it is found that no settlement can be arrived at, the Act, by a legal fiction, prolongs the conciliation proceedings until the actual receipt of the report by the appropriate Government and goes on to provide that the appropriate Government must have seven days' time to consider what further steps it would take under the Act. Up to the expiry of this period of 7 days the Act permits no strike but after that period is over the employees are left free to resort to collective· action by way of a strike. Indeed, it is on the basis of these provisions that the date of strike has to be carefully selected and specified in the notice of strike to be given by the employees under section 22 (1) of the Act.

Thus, even a cursory perusal of the Act makes it clear that time is of the essence of the Act and that the requirements of its relevant provisions must be punctually obeyed and carried out if the Act is to operate harmoniously at all. In this case the 9onciliation officer subiµitted his re~ort on OctobEH [1953) 22, 1949, i.e., well within 14 days from the commencement of the conciliation proceedings as required by Worker.s of the l (6) Th Industry section 2 o t e ct. report was sent Colliery, tlirough what has been called the routine official • Dhanbad channel. Admittedly, it was received in the office of the Chief Labour Commissioner at New Delhi on Management of October 25, 1949, but surprisingly.it was not passed '"0' flnldustry on to the Ministry of Labour, which is also in New o isry.

Delhi, until about November 17, 1949. 'The em- Das J. ployees had no means of knowing when the report was actually received by the Central Government which is the appropriate Government in this case or when the period of 7 days after such receipt expired. But in the belief, entertained, we think, quite legitimately, that the official business had been conducted regularly and promptly the employees went on strike on November 7, 1949, as previously notified. ·It now transpires that the report had not been actually received by the Central Government and, therefore, on the letter of the law, the strike must be held to be illegal and the employees must face and bear the consequences of an illegal strike and may even be deprived of benefits to which they would otherwise have been entitled.

This hardship has been thrown upon the employees for no· fault of their own but simply because of the callous indifference or utter inefficiency and slackness apparently prevailing in the office of the Chief Labour Commissioner which cannot be too strongly deprecated. It is to be hoped that public officers would, in the discharge of their official duties in future, show a greater sense of responsibility than what they have done in the case before us. Appeal dismissed. Agent for the appellants: Gobind Saran Singh. Agent for the respondent: P. K., Chatterjee.