JUDGMENT Anima Hazarika, J. 1. The award dated 19.9.2000 passed by he learned Industrial Tribunal ('Tribunal'). Silchar in reference case No. 9 of 1996 is under challenge in the instant writ petition thereby seeking a writ of certiorari for quashing the award, whereby and whereunder the learned Tribunal has held that the strike resorted to by the workers was justified and, hence, directed the management to release, the deducted wages for the strike period within one (1) month from the date of the award. 2. Two questions have been raised before this Court for adjudication. They are, (i) As to whether resorting to strike during the pendency of the conciliation proceeding is illegal in view of provision contained under Section 22(d) of the industrial Disputes Act. 1947 ('the Act'), and (ii) As to whether the payment of North Eastern Allowance ONE Allowance') is of such emergent nature, which would justify a strike even when the action of the Government on the report of the Assistant Labour Commissioner was pending? 3. In view of the contentions raised, it would be relevant to examine the terms of reference. Vide notification dated 19.8.1996 the Governor of Assam in exercise of powers conferred by Clause (C)(D) of Sub-section (1) of Section 10 of the Act has referred the dispute to the Presiding Officer of the Industrial Tribunal, Silchar for adjudication. The terms of reference is reproduced herein below: (a) Whether the workers of the Cachar Paper Mill, P.O. Panchgram, District-Hailakandi are eligible for wages for the period of strike resorted by them from 6 a.m. of 12.0.1996 to 6 a.m. of 15.3.1996? (b) If not, what relief they are entitled to? 4. The first limb of reference relates as to whether the strike resorted to by the workmen were justified and the second limb relates to consequential relief. The above quoted reference was registered on 19.9.1996 being numbered as Reference Case No. 9 of 1996. On receipt of the summons both the parties to the reference have submitted their respective written statements. 5. In the written statement submitted by the management of Hindustan Paper Corporation Ltd. ('management'), it is contended that the management corporation introduced NE Allowance for its officers who have All India Transfer Liability and also special Compensatory (remote locality) allowance to other employees as per laid down slabs of controlling Ministry of Heavy Industries of Government of India. 5. In the written statement submitted by the management of Hindustan Paper Corporation Ltd. ('management'), it is contended that the management corporation introduced NE Allowance for its officers who have All India Transfer Liability and also special Compensatory (remote locality) allowance to other employees as per laid down slabs of controlling Ministry of Heavy Industries of Government of India. On being introduced, the above facilities to employees of the management Corporation, the workmen were demanding the said facilities to them. The management in their attempt to resolve the problem held discussion with the unions but when their all attempt failed, the management sought intervention of the Assistant Labour Commissioner-cum-Conciliation Officer vide communication dated 12.10.1995. In pursuance of the said communication dated 12.10.1995, the Assistant Labour Commissioner-cum-Conciliation Officer intervened in the matter fixing conciliation on 27.10.1995. But during the pendency of the Conciliation Proceedings, the unions threatened the management to resort to strike from 6 a.m. of 12.3.1996 to 6 a.m. of 15.3.1996 unless the aforesaid demands are fulfilled. The management having no other alternative informed the Assistant Labour Commissioner, Silchar regarding threatened strike, who vide communication dated 4.3.1996 informed the unions that the report as required under Section12(4) of the Act has been sent to the Government and therefore, requested the unions to withdraw the threatened strike for the larger interest of the industry. The management also informed the unions that their demands have been referred to the concerned Ministry for their appreciation. Moreover, the unions in the meantime during the wage settlement with the management had a threadbare discussion on the issue relating to NE allowance whereby the unions had given undertaking in writing that for any contentious issue the same would be resolved by bipartite meeting between the management and the unions and further agreed to send proposal having financial implication to the Board for consideration. But, the unions during the pendency of conciliation, before the Government relating to the subject-matter of strike and undertaking given in writing; resorted to strike from 6 a.m. of 12.3.1996 to 6 a.m. of 15.3.1996 and, thus, illegally cutting the entire administration causing loss to the mill and the sufferings and inconvenience to all. The management made all arrangement for smooth functioning of the mill during the strike period. The management made all arrangement for smooth functioning of the mill during the strike period. But the workmen did not attend their duties by sorting to strike which is illegal and hence, they are not entitled to wages for the illegal strike resorted to from 6 a.m. of 12:3.1996 to 6 a.m. of 15.3.1996 Therefore, the management prays to reject the issues by holding that the strike resorted to by the workmen is illegal and they are not entitled for any wages for the strike period. 6. The unions, four in number filed one consolidated written statement contending, inter alia, that the reference being Reference Case No. 9 of 1996 was made due to failure of the Conciliation Proceeding held on 27.10.1995 and 6.11.1995 by the Assistant Labour Commissioner-cum-Conciliation Officer, Silchar due to non-compliance of the directions by the management issued by the said officer vide communication dated 12.10.1995 and subsequent violation of the order issued on 25.3.1996 and, therefore, there is a reasonable and substantial cause of action for the reference. Moreover, the management had acknowledged the receipt of the unions' protest letter dated 21.9.1995 relating to NE allowances and consequent reply thereto dated 22.9.1995 would show that the matter has been referred to the Corporate Headquarter for their examination and on receipt of the reply further communication would follow. But contrary to the aforesaid letter dated 22.9.1995, the management issued a circular dated 22.9.1995 stating that in compliance to the instruction received from the Government of India and subsequent clarification received from Corporate Headquarter arrear on account of NE allowance at the rate of 10% of the basic pay subject to maximum. Rs. 500 has been credited to the respective Bank Account of the employees in the category of Executive and above and in respect of other employees who are eligible to special compensatory (remote locality) allowance at the rate of slab prescribed shall be payable in cash as per programme notified in the circular. This act entails willful deviation from the prevision envisaged under Clause 18 of the Certified Standing Order of the company applicable to workmen and the terms of appointment in service. This act entails willful deviation from the prevision envisaged under Clause 18 of the Certified Standing Order of the company applicable to workmen and the terms of appointment in service. Moreover, after receipt of strike notice dated 11.10.1995 from the unions, the management had requested the General Secretaries of the four unions to attend a meeting scheduled to be held on 11.10.1995 at 3:30 p.m to discuss the issue of NE allowance which yielded no result. Copies of the said strike notice were also issued to Assistant Labour Commissions-cum-Conciliation Officer and others. The Assistant Labour Commissioner-cum-Conciliation Officer intervened into the matter and notified for conciliation over the dispute vide communication dated 12.10.1995 and requested both the parties to maintain status quo ante as on 21.8.1995. But the management did not pay any heed to the said communication issued by the Conciliation Officer. On the contrary, the management issued the circular dated 22.9.1995 by paying the NE allowance to the Executives and above but the payment of Supervisors and workmen were kept in abeyance. In compliance with the direction of the Conciliation Officer, the unions deferred their decision of resorting to strike which was scheduled to be commenced with effect from 26.10.1995 for 72 hours. On the other hand, pursuant to the notification of the Conciliation Officer, the management did not attend the conciliation proceeding on the fixed dates and ultimately the conciliation failed. Hence, the adamant and non-compromising attitude of the management compelled the Unions to resort to agitational programme and, thus, consequent upon the failure of the conciliation, the unions with reference to the earlier notice dated 11.10.1995 and deferred notice dated 25.10.1995 had issued a further strike notice on 23.2.1996 for revised schedule of strike to be commenced from 6 a.m. of 12.3.96 to 6 a.m. of 15.3.1996 which was resorted to by the act of the management and the management is responsible for the strike and requested to hold that the strike is legal directing the management to release their deducted wages for the strike period. 7. The parties to the dispute have submitted several documents. The unions examined Sri Manabendra Chakravorty, the General Secretary of Hindusthan Paper Corporation, Cachar Paper Project Union, whereas the management did not examine a single witness to prove that the strike resorted to by the workmen was illegal. 7. The parties to the dispute have submitted several documents. The unions examined Sri Manabendra Chakravorty, the General Secretary of Hindusthan Paper Corporation, Cachar Paper Project Union, whereas the management did not examine a single witness to prove that the strike resorted to by the workmen was illegal. Since the letter Ext 'A' dated 4.3.1996 issued by the Assistant Labour Commissioner, Cachar to the unions to suspend their proposed strike informing them that the report under Section 12(4) of the Act has been sent to the Government which letter the unions denied to have received, However, the management advanced their arguments on the law points referring certain decisions relating to strike and its consequences. 8. The learned Tribunal on a threadbare discussion, considering the evidence led by the unions and the argument advanced by the parties has held that the strike resorted by the unions was justified in absence of evidence of the management relating to Ext-'A' to prove that the aforesaid letter dated 4.3.1996 was received by the union members thereby directed to return the deducted wages for the strike period within one month from the date of the award and, hence, the instant writ petition questioning the legality and validity of the award dated 19.9.2000 passed in Reference Case No. 9 of 1996. 9. Heard Mrs. M. Hazarika, learned senior counsel assisted by Ms. A. Ajitsaria, learned Counsel appearing for the Petitioner. Also heard Mr. G. Soren, learned Government Advocate appearing for Respondent No. 1 and Mr. B.C. Das, learned senior counsel assisted by Ms. S. Roy, learned Counsel appearing for the Respondent Nos. 2 to 5, the unions. 10. Criticizing the award passed by the learned Tribunal, Ms. Hazarika, learned senior counsel appearing for the management Petitioner has referred to Section 22(d) and Section 23 of the Act and would contend that the strike resorted to by the workmen violates the provisions of Section22 and 23 of the Act and hence, ward passed by the learned Tribunal requires interference under certiorari jurisdiction. 11. Hazarika, learned senior counsel appearing for the management Petitioner has referred to Section 22(d) and Section 23 of the Act and would contend that the strike resorted to by the workmen violates the provisions of Section22 and 23 of the Act and hence, ward passed by the learned Tribunal requires interference under certiorari jurisdiction. 11. The counsel has further contended that vide Ext-'A' dated 4.3.1996 the Conciliation Officer, requested the unions to suspend/withdraw the proposed strike since the report under Section 12(4) of the Act has been sent to the Government for appropriate decision in the matter and hence, strike resorted to by the unions is illegal and they are not entitled to get the wages for the strike period. In support of her contentions, learned Counsel has placed reliance upon the following decisions: (1) India General Navigation & Railway Co. Ltd. v. I.R. Workmen AIR 1960 SC 219 . (2) Syndicate Bank v. K. Umesh Nayak (1994) 5 SCC 572 . (3) HMT Ltd. v. HMT Head Office Employees' Association and Ors. (1996) 11 SCC 319 . (4) Hindusthan Paper Corporation Ltd. v. Presiding Officer, Industrial Tribunal, Silchar and Ors. 2003 (3) GLT 105 : (2003) 2 GLR 583. 12. Countering the attack of the learned Counsel appearing for the management, Mr. Das learned senior counsel appearing for the unions, Respondent Nos. 2 to 5 has referred to Sections 12(6)and 23 of the Act and urged that there was no conciliation pending and management having failed to prove Exhibit 'A' dated 4.3.1996 issued by the Conciliation Officer was ever served upon the unions, the learned Tribunal has rightly passed the award which do not require to be interfered with in exercise of certiorari jurisdiction, more so, when there is no error apparent on the face of the record. In support of his contentions, the counsel has referred the decision reported in Crompton Greaves Ltd. v. its Workmen (1978) 3 SCC 155 . 13. Considered the argument advanced. Perused the evidence on record along with the pleadings of the parties and the provisions of the Act referred to by the earned counsel appearing for the parties. 14. To answer the first limb of the question as to whether the strike resorted to by the workmen was justified, it would be appropriate to refer the relevant provisions of the Act. 14. To answer the first limb of the question as to whether the strike resorted to by the workmen was justified, it would be appropriate to refer the relevant provisions of the Act. Section 22(d) of the Act provides that no person employed in a public utility service shall go on strike in breach of contract during the pendency of any conciliation proceeding before a Conciliation Officer and seven days after the conciliation of such proceedings. Section 23 of the Act deals with the general prohibition of strikes and lock-outs in breach of contract during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings. To answer the question it would be necessary to summarize the brief facts pleaded and established. 15. Admittedly, the management has introduced ME Allowance and Special Compensatory (remote locality) Allowance having all India transfer liability and grant of Special Compensatory Allowance to others not having the said liability. The unions raised an industrial dispute demanding NE allowance to all categories of employees and the management implemented the decision against which on 11.10.1995 a notice of proposed 72 hours strike was served upon the management if they refuse to grant NE allowance to all category of employees, resulting in reference to conciliation proceeding. On 12.10.1995 the Assistant Labour Commissioner notified the Hate of conciliation scheduled to be held on 27.10.1995 but the conciliation failed and consequent thereupon the unions on 26.2.1996 issued notice of strike informing the management that they would resort to strike from 6 a.m. of 12.03.96 to 6 a.m. of 15.3.1996. On 4.3.1996, the Assistant Labour Commissioner informed the unions that necessary reports after failure of conciliation proceedings on 6.11.1995 on the same issue had already been submitted to the Government for making a reference for adjudication by Labour Court/Tribunal and requested them not to resort to strike. 16. To get the benefit of Section 22(d) and Section 23 of the Act and consequently to hold the strike to be illegal, the management has to establish that the letter dated 4.3.1996 was served upon the unions. 16. To get the benefit of Section 22(d) and Section 23 of the Act and consequently to hold the strike to be illegal, the management has to establish that the letter dated 4.3.1996 was served upon the unions. Record would reveal that during the adjudication before the learned Tribunal, no witness from the management side came forward to prove that the letter Ext.A was served upon the unions; when the witness examined by the unions has categorically stated that he did not receive the letter alleged to have been issued by the Assistant Labour Commissioner and the said evidence could not be shaken in cross-examination by the management. In view of the same, the burden of proof is, thus, shifted to the management, but the management did not come forward to prove that the letter Ext-A was actually served on the unions and therefore, the benefit of Section 22(d) and Section 23 of the act cannot be made available to the management as has boon rightly held by the learned Tribunal and the said finding cannot be interfered with by the court while exercising power under writ jurisdiction. Therefore, this Court is not inclined to accept the argument advanced by the management. This Court, thus, hold that the strike was legal and consequently thereupon the workmen are entitled to get the deducted wages back for three days from 12.3.1996 to 15.3.1996 and accordingly the question raised in the first limb is answered in positive and against the management Petitioner. 17. Now it would be apt to analyse the decisions cited by the learned Counsel for the Petitioner in support of her case. The case of India General Navigation (supra) relates to dismissal of eight workmen and dismissal/suspension of 260 workers to which reference was made and adjudicated upon and, therefore, has no relevancy to the instant case. The case of the Syndicate Bank (supra) relates to strike. In order to get the wages for the strike period, the strike has both to be legal and justified. In other words, if the strike is only legal but not justified or if the strike is illegal, though justified, the workers are not entitled to the wages for tile said period, the employer is entitled to deduct wages for the period of such strike and there is no ambiguity on the decision as rendered by the Apex Court. In other words, if the strike is only legal but not justified or if the strike is illegal, though justified, the workers are not entitled to the wages for tile said period, the employer is entitled to deduct wages for the period of such strike and there is no ambiguity on the decision as rendered by the Apex Court. In HMT Ltd. (supra), the Apex Court has held that where the National Industrial Tribunal found on facts that the strike was illegal for contravening Sections 22(1)(d) or 23(a) or (c) of the Act even if such strike was justified, no wages for the strike period could have been awarded. There is no dispute over the decision rendered by Apex Court. The case of Hindusthan Paper Corporation Ltd. (supra) relates to NE Allowances granted to those employees of Hindustan Paper Corporation who have all India transfer liability and the employees who do not have all India transfer liability are not entitled to get the benefit of NE Allowance as held by the court. However, in Hindusthan Paper Corporation (supra), the court has not dealt with the matter regarding legality/illegality of the strike resorted to by the workmen and hence, the decision would not be applicable. 18. From the aforesaid discussion and the decisions relied upon by the learned Counsel appearing for the parties, the award passed by the learned Tribunal holding the strike was legal and consequent thereupon, the workmen are entitled to get back the wages deducted for three days for the strike period, there being no error apparent on the face of the record in arriving at the aforesaid conclusion and the question being finding of fact, this Court is not inclined to interfere with the award dated 19.9.2000 passed in reference case No. 9 of 1996 by the learned Tribunal, Silchar, Cachar. 19. In the result, the writ petition is found to be devoid of any merit which is accordingly dismissed. Parties are left to bear their own costs. Stay order, if any, passed earlier stands vacated. 20. Registry is directed to send down the records immediately. Petition dismissed.