LABOUR COMMISSIONER, MADHYA PRADESH versus BURHANPUR TAPTI MILLS AND OTHERS

Citation: [1964] 7 S.C.R. 484 · Decided: 25-03-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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1964 
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:SUPREJUE COURT REPORTS 
[1964}. 
LABOUR COMMISSIONER, MADHYA PRADESH 
.· v. 
BURHANPUR TAPTI MILLS AND OTHERS 
[P. B. GAJENDRAGADKAR, C. J., K. N. W ANCHOO AND K. C. DAS 
GUPTA, JJ.) 
Industrial Disput~trike-Legality-Whether employer can 
decide and take action-Jurisdiction of ·Labour Co1n1nissioner-
"Rendered i!!egal" in s. 42(l)(g) if means "held illegal" Central 
Provinces and Berar Industrial Disputes and Settlement Act, 1947 
(C. P. and Berar Act 33 of 1947), ss. 16, 41 and 42(1)(g). 
An employee was summarily dismissed by the respondent-
employer after holding an enquiry on the allegation that he had· 
instigated workers to go on an illegal strike. The employee 
applied under s. 16 of Central Provinces and Berar Industrial 
. Disputes Settlement Act to the Labour Commissioner, who held 
that authority to decide the legality of a strike had been entrusted 
by s. 41 of the Act to the State Industrial Court or the District 
Industrial Court and that before a strike had been held by either 
of these authorities to be illegal the employer had no right to 
take any action against his workmen on his own view that a 
strike was illegal and ordered the reinstatement of the employee 
with full wages. The revision application by the respondent-
empl.oyer to the State Industrial Court proved unsuccessful 
tl:ough it disagreed with the Labour Court's view that the em-
ployer could not take action before a decision from the State 
Industrial Court or the District Industrial Court declaring the 
strike to be illegal had been obtained. Thereafter, the employer 
moved the High Court under Art. 226. The High Court was of 
the view that though the Labour Commissioner may not have 
the jurisdiction to decide the question of illegality of a strike, it 
may decide the question incidentally for the purposes mentioned 
in s. 16 if in an enquiry such a question is raised, :.ind quashed 
the orders of the Labour Commissioner and the State Industrial 
Court. On appeal preferred by the Labour Commissioner in this 
Court. 
Held: (i) The employer is free to take action against the 
employee as soon as he thinks that the strike in which he has 
participated comes within the provisions of s. 40 of the Act. The 
phrase ''rendered illegal" in s. 42(1)(g) has been deliberately used 
in contradistinction to the words ''held illegal" used in ss. 43, 44 
and 45. 
It would be an impossible position for industri3l management 
if after notice has been given of a strike or a strike has started--
which the employer considers to be illegal within the meaning 
of s. 40 he should be compelled to stay his hands and wait till 
a State Industrial Court or a District Industrial Court has given 
a declaration on the question. 
The use of the word "shall" in s. 41 in connection with the 
action to be taken on a reference by the State Government and 
"may" in connection with the action on an application by others 
in the same section compels the conclusion that on an application .. 
by anybody other than the State Government, the State Industrial 
Court or a District Industrial Court may also · refuse to, take 
action. 
7 S.C.R. 
SUPRE1\1E COURT REPORTS 
485 
(ii) For performing its functions under s. 16(3) of the Act tl::e 
Labour Commissioner has jurisdiction to c'ecide the question of 
legality or illegality of a strike when that question is raised 
before it. 
' 
CML APPELLATE JURISDICTION: Civil Appeal No. 529 of 
1963. Appeal by special leave from the judgment and order 
dated September 24, 1958, of the Madhya Pradesh High Court 
in Misc. Petition No. 82 of 1958. 
I. N. Shroff, for the appellant. 
M. C. Setalvad, B. Narayanaswamy, !. B. Dadachanji, 
Ravinder Narain and 0. C. Mathur, for respondent No. 1. 
M .S.K. Sastri 
and M. S. Narasimhan, for respondent 
No. 2. 
March 25, 1964. The judgment of the Court was deli-
vered by 
DAS GUPTA, J.-Two main questions arise in this appeal. 
The first is whether s. 42(1)(g) of the Central Provinces and 
Berar Indnstrial Disputes and Settlement Act, 1947 prohibits 
an employer from taking action against a workman for partici-
pation in an illegal strike before it is so declared under s. 41 
of the Act The second question is whether in an application 
made under s. 16(3) of the Act the Labour Commissioner has 
jurisdiction to decide the legality or illegality of the strike. 

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