SYNDICATE BANK CANARA BANK STATE BANK OF INDIA Vs. K UMESH NAYAK:R JAMBUNATHAN:STATE BANK STAFF UNION

JUDGEMENT

(1.) These appeals have been referred to the Constitution Bench in view of the apparent conflict of opinions expressed in three decisions of this Court - a three-Judge Bench decision in Management of Churakulam Tea Estate (P) Ltd. v. The Workmen, (1969) 1 SCR 931 and a two-Judge Bench decision in Crompton Greaves Ltd. v. Its Workmen, (1978) 3 SCC 155 on the one hand, and a two-Judge Bench decision in Bank of India v. T. S. Kelawala, (1990) 4 SCC 744 on the other. The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of strike In the first two caess, viz., Churakulam Tea Estate and Crompton Greaves (supra), the view taken is that the strike must be both legal and justified to entitle the workmen to the wages for the period of strike whereas the latter decision in T.S.Kelawala (supra) has taken the view that whether the strike is legal or illegal, the employees are not entitled to wages for the period of strike. To keep the record straight, it must be mentioned at the very outset that in the latter case, viz., T.S. Kelawala (supra) the question whether the strike was justified or not, was not raised and, therefore, the further question whether is justified, was neither discussed nor answered. Secondly, the first two decisions, viz., Churakulam Tea Estate (supra) and Cromption Greaves (supra) were not cited at the Bar while deciding the said case and hence there was no occasion to consider the said decisions there. The decisions were not cited probably because the question of the justifiability or otherwise of the strike did not fall for consideration. It is, however, apparent from the earlier two decisions, viz., Churakulam Tea Estate and Crompton Greaves (supra) that the view taken there is not that the employees are entitled to wages for the strike-period merely because the strike is legal. The view is that for such entitlement the strike has both to be legal and justified. In other words, if the strike is illegal but justified or if the strike is legal but unjustified, the employees would not be entitled to the wages for the strike-period. Since the question whether the employees are entitled to wages, if the strike is justified, did not fall for consideration in the latter case, viz., in T.S.Kelawala (1990) 4 SCC 744), there is, as stated in the beginning, only an apparent conflict in the decisions.

(2.) Before we deal with the question, it is necessary to refer to the facts in the individual appeals. C.A.No. 2710 of 1991 On 10th April, 1989, a memorandum of settlement was signed by the Indian Banks Association and the All India Bank Employees' Unions including the National Confederation of Bank Employees as the fifth bipartite settlement. The appellant-Bank and the respondent-State Bank Staff Union through their respective Federations were bound by the said settlement. In terms of clauses 8(d) and 25 of the memorandum of the said settlement, the appellant-Bank and the respondent-Staff Union had to discuss and settle certain service conditions. Pursuant to these discussions, three settlements were entered into between the parties on 9th June, 1989. These settlements were under S.2 (p) read with S.18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act.") Under these settlements, the employees of the appellant-Bank were entitled to certain advantages over and above those provided under the All India Bipartite Settlement of 10th April, 1989. The said benefits were to be given to the employees retrospectively with effect from 1st November, 1989. It appears that the appellant-Bank did not immediately implement the said settlement. Hence, the employees, Federation sent telex message to the appellant-Bank on 22nd June, 1989 calling upon it to implement the same without further loss of time. The message also stated that the employees would be compelled to launch agitation for implementation of the settlement as a consequence of which the working of the Bank and the service to the customers would be affected. In response to this, the Bank in its reply dated 27th June, 1989 stated that it was required to obtain the Government's approval for granting the said extra benefits and that it was making efforts to obtain the Government's approval as soon as possible. Hence the employees' Federation should, in the meanwhile, bear it with. On 24th July, 1989, the employees 'Federation' again requested the Bank by telex of even date to implement the said settlement forthwith, this time, warning the Bank that in case of its failure to do so, the employee would observe a day's token strike after 8th August, 1989. The Bank's response to this message was the same as on the earlier occasion. On 18th August, 1989, the employees' Federation wrote to the Bank that the settlements signed were without any pre-condition that they were to be cleared by the Government and hence the Bank should implement the settlement without awaiting the Government's permission. The Federation also, on the same day, wrote to the Bank calling its attention to the provisions of Rule 58.4 of the Industrial Disputes (Central) Rules, 1957 (the 'Rules') and requesting it to forthwith forward copies of the settlements to the functionaries mentioned in the said Rule. By its reply of 23rd August, 1989, the Bank once again repeated its earlier stand that the Bank is required to obtain Government's approval for granting the said extra benefits and it was vigorously pursuing the matter with the Government for the purpose. It also informed the Federation that the Government was actively considering the proposal and an amicable solution would soon be reached and made a request to the employees' Federation to exercise restraint and bear with it so that their efforts with the Government may not be adversely affected, By another letter of the same date, the Bank informed the Federation that they would forward copies of the agreements in question to the concerned authorities as soon as the Government's approval regarding implementation of the agreement was received. The Federation by the letter of 1st September, 1989 complained to the Bank that the Bank had been indifferent in complying with the requirements of the said Rule 58.4 and hence the Federation itself had sent copies of the settlements to the concerned authorities, as required by the said Rule.

(3.) On the same day, i.e., 1st September 1989 the Federation issued a notice of strike demanding immediate implementation of all agreements / understandings reached between the parties on 10th April, 1989 and 9th June, 1989 and the payment of arrears of pay and allowances pursuant to them. As per the notice, the strike was proposed to be held on three different days beginning from 18th September, 1989. At this stage, the Deputy Chief Labour Commissioner and Conciliation Officer (Central), Bombay wrote both to the Bank and the Federation stating that he had received information that the workmen in the Bank through the employees' Federation had given a strike call for 18th September 1989. No formal strike notice in terms of S.22 of the Act had, however, been received by him. He further informed that he would be holding conciliation proceedings under Sec. 12 of the Act in the office of the Regional Labour Commissioner, Bombay on 14th September, 1989 and requested both to make it convenient to attend the same along with a statement of the case in terms of Rule 41(a) of the Rules. The conciliation proceedings were held on 14th September, 1989 and thereafter on 23rd September, 1989. On the latter date, the employees' Federation categorically stated that no dispute as such existed. The question was only of implementation of the agreements / understandings reached between the parties on 10 th April, 1989 and 9th June, 1989. However, the Federation agreed to desist from direct action if the Bank would give in writing that within a fixed time they will implement the agreements/ understandings and pay the arrears of wages etc. under them. The Bank's representatives stated that the Bank had to obtain prior approval of the Government for implementation of the settlements and as they were the matters with the Government for obtaining its concurrence, the employees should not resort to strike in the larger interests of the community. He also pleaded for some more time to examine the feasibility of resolving the matter satisfactorily. The conciliation proceedings were there-after adjourned to 26th September, 1989. On this date, the Bank's representatives informed that the Governments's approval had not till then been obtained, and prayed for time till 15th October, 1989. The next meeting was held on 27th September,1989. The Conciliation Officer found that there was no meeting ground and no settlement could be arrived at. However, he kept the conciliation proceedings alive by stating that in order to explore the possibility of bringing about an understanding in the matter, he would further hold discussions on 6th October, 1989.