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2019 DIGILAW 416 (TS)

R. Subender Singh v. State of Telangana

2019-11-18

A.ABHISHEK REDDY, R.S.CHAUHAN

body2019
JUDGMENT : R.S. Chauhan, J. 1. These six Writ Petitions have been filed in the nature of Public Interest Litigation ('PIL') before this Court. The petitioners, in these writ petitions, have prayed for five different reliefs:-- (i) to declare the strike being observed by respondent Nos. 6 and 7 as illegal, (ii) to direct the State Government, and the Telangana State Road Transport Corporation ('the Corporation', for short), to negotiate with the trade unions, (iii) to direct the trade unions to call off the strike, (iv) to direct the State Government and the Corporation to take stern action against the trade unions, and (v) to resolve the issues between the trade unions and the Corporation. 2. Briefly, the facts of the case are that the on 31.08.2019, TSRTC Telangana Jathiya Mazdoor Union gave a notice to the Corporation stating that until and unless their demands are met, they propose to go on strike. Likewise, on 11.09.2019, the RTC Telangana Mazdoor Union, the respondent No. 7, gave a notice in similar terms. Considering the fact that there was a likelihood of an industrial dispute that may erupt, the proceedings under Section 12 of the Industrial Disputes Act, 1947 ('the Act', for short) commenced. By notice dated 16.09.2019, the Conciliation Officer directed both the trade unions, and the Corporation to appear before the Conciliation Officer. The conciliation meeting was held on 04.10.2019. However, the conciliation proceedings failed to resolve the dispute between the Corporation, and the trade unions. On 05.10.2019, the trade unions went on strike. 3. Due to the strike observed by the trade unions, the people of the State started suffering as the road transport sector came to a grinding halt." Hence, these Writ Petitions, in the form of PILs, were submitted before this Court over a period of time. Since the reliefs being sought by different writ petitioners are similar in nature, the six petitions are being decided by this common order. 4. Aware of the plight of the people, and hoping that all the three parties, namely the trade unions, the Corporation, and the State Government would resolve their disputes inter se, so as to end the agony of the people, from 10.10.2019 till 12.11.2019 this Court repeatedly requested the State Government, and the Corporation to negotiate with the trade unions, and to end the strike. However, despite the hope of this Court that the parties would resolve their disputes, so far, the disputes have remained unresolved. In fact, even today, the strike continues. This is, perhaps, the longest strike observed by the trade unions in the State. 5. However, it is pertinent to point out that during the course of the proceedings before this Court, the trade unions had offered to negotiate without insisting with their first demand for merger of the Corporation with the Government has to be accepted. Moreover, when this Court had suggested the constitution of a committee consisting of three former Hon'ble Judges of the Apex Court, the trade unions offered to call off the strike in case the disputes were to be referred to the said committee to be constituted by this Court. But the State Government, and the Corporation were not willing to appear before any such committee slated to be constituted by this Court. Considering the stand being taken by all the three parties, this Court thought it proper to hear these writ petitions on merit. 6. The two issues before this Court are:-(i) whether this Court has the power to declare the strike as illegal or not? and (ii) whether this Court has the power to direct the Corporation to enter into negotiations with the trade unions or not? 7. In order to adjudicate upon the twin issues, this Court had requested Mr. G. Vidya Sagar, the learned Senior Counsel, to assist this Court. 8. Mr. G. Vidya Sagar, the learned Senior Counsel, submits that Section 12 of the Act specifies the duties of the Conciliation Officer. According to the said Section, where an industrial dispute exists, or is apprehended, and where the dispute relates to the public utility service, and in case, a notice under Section 22 of the Act has been given, the Conciliation Officer is duty bound to hold conciliation proceedings in, the manner prescribed. In case the conciliation proceedings fail to reconcile the differences, and to reach a settlement, then under Section 12(4) of the Act, the Conciliation Officer is required to send a full report to the Government clearly stating the steps taken by him for ascertaining the facts and circumstances relating to the dispute, and for bringing about a settlement thereof. He is further required to state the facts and circumstances under which, a settlement could not be achieved. He is further required to state the facts and circumstances under which, a settlement could not be achieved. Under Section 12(5) of the Act, the Government is given a discretionary power to either refer the case to a Board, Labour Court, Tribunal, or National Tribunal, by making a reference of the disputes, or not to do so. In case the appropriate Government decides not to refer the dispute, it is required to give reasons, in writing, to the concerned parties. 9. Mr. G. Vidya Sagar, the learned Senior Counsel, has further drawn the attention of this Court to Section 22 of the Act, which deals with the prohibition of strikes and lockouts, and Section 24 of the Act, which deals with illegal strikes and lockouts. While relying on the case of Syndicate Bank v. K. Umesh Nayak, (1994) 5 SCC 572 : ( AIR 1995 SC 319 ) Mr. Vidya Sagar, the learned Senior Counsel, submits that it is not within the power of the High Court to declare a strike as legal or illegal. According to the notification dated 11.10.2016, if the Conciliation Officer were the Joint Commissioner of Labour; then the officer, who is empowered to refer the dispute to the Labour Court, under Section 12 of the Act, is the Commissioner of Labour. Therefore, according to the learned Senior Counsel, it is only the Commissioner of Labour, who can refer the dispute or not to refer the dispute under Section 12 of the Act. Moreover, according to the learned Senior Counsel, it is only the Labour Court which can decide whether the strike is legal or illegal, justified or unjustified, and to decide what will be the consequences, in case the strike were to be declared as-legal or illegal. However, as these issues require the marshalling of evidence by the parties, the complicated, and disputes question of facts cannot be gone into by this Court under its writ jurisdiction under Article 226 of the Constitution of India. 10. The learned counsel for the parties are ad idem with the information and the exposition of law as done by Mr. G. Vidya Sagar, the learned Senior Counsel. 11. As far as second issue is concerned, the learned Advocate General for the State, Mr. B.S. Prasad, and Mr. 10. The learned counsel for the parties are ad idem with the information and the exposition of law as done by Mr. G. Vidya Sagar, the learned Senior Counsel. 11. As far as second issue is concerned, the learned Advocate General for the State, Mr. B.S. Prasad, and Mr. Ramachandra Rao, the learned counsel for the Corporation, have vehemently contended that it is the discretion of the State Government, and the Corporation to decide whether to negotiate, or not to negotiate with the trade unions. Therefore, this Court would not be within its power to direct the Corporation, and the State Government to necessarily and perforce negotiate with the trade unions. 12. On the other hand, Mr. D. Prakash Reddy, the learned Senior Counsel for respondent Nos. 6 and 7, has strenuously contended that even if a mandamus cannot be issued to the Government, or to the Corporation to negotiate, but considering the plight of the people of the State, a direction can be issued to the Corporation, and to the State Government to ensure that sufficiently large number of buses are plied for the benefit of the people so as to ameliorate their conditions. Moreover, relying on the case of Express Newspapers Private Limited v. Michael Mark, (1963) 3 SCR 405 : AIR 1963 SC 1141 , the learned Senior Counsel has pleaded that going on a strike clearly indicates that the workers do not have the intention to abandon the work, but their intention is merely to ensure that their demands are met, and their working condition is duly improved. Therefore, this Court should direct the Corporation to ensure that the workers are taken back in service, rather than, refusing to take them back in service. 13. To this suggestion made by the learned Senior Counsel, Mr. Ramachandra Rao, the learned counsel for the Corporation submits that any such direction, issued by this Court, would tantamount to indirectly doing what this Court cannot do directly. Therefore, this Court should refrain from passing such a direction to the Corporation, or to the State Government. 14. Heard the learned counsel for the parties. 15. It is appropriate to refer to the relevant provisions of the Industrial Disputes Act in order to decide the twin issues. Section 12 of the Act is as under: 12. Therefore, this Court should refrain from passing such a direction to the Corporation, or to the State Government. 14. Heard the learned counsel for the parties. 15. It is appropriate to refer to the relevant provisions of the Industrial Disputes Act in order to decide the twin issues. Section 12 of the Act is as under: 12. Duties of conciliation officers:--(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) the conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government or an officer authorized in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, 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 his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report: referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons thereof. (6) A report under this section 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. Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons thereof. (6) A report under this section 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. Provided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute. Section 22 of the Act is as under. 22. Prohibition of strikes and lock-outs:--(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 weeks before striking; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of strike specified in any such notice as aforesaid; or (d) during die pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. (2) No employer carrying on any public utility service shall lock-out any of his work-men- (a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking-out; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of lockout specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. (3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public, utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services. (4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed. (5) The notice of lock-out referred to in sub-section (2) shall be given, in such mariner as may be prescribed. (4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed. (5) The notice of lock-out referred to in sub-section (2) shall be given, in such mariner as may be prescribed. (6) If on any day an employer receives from any persons employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him. any such notices as are referred, to in sub-section (2), he shall within five days thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day. Section 24 of the Act is as under:-- 24. Illegal strikes and lock-outs:-- (I) A strike or a lock-out shall he illegal if- (i) it is commenced or declared in contravention of section 22 or section 23; or (ii) it is continued in contravention of an order made under sub-section (3) of section 10 or sub-section (4A) of Section 10A. (2) Where a. strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, the continuance of such strike or lockout shall not be deemed to be illegal, provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 or sub-section (4A) of section 10A. (3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal. 16. While Section 12 of the Act defines the duties of the Conciliation Officer, it also lays down the procedure to be followed if the conciliation proceedings were to fail to reach a settlement. According to Section 12(4) of the Act, the Conciliation Officer is duty bound to submit his report to the State Government. Moreover, under Section 12(5) of the Act, it is for the State Government to decide whether to refer the dispute to Board, Labour Court, Tribunal, or National Tribunal or not? According to Section 12(4) of the Act, the Conciliation Officer is duty bound to submit his report to the State Government. Moreover, under Section 12(5) of the Act, it is for the State Government to decide whether to refer the dispute to Board, Labour Court, Tribunal, or National Tribunal or not? In case it decides to refer the dispute to the Labour Court, it is for the said forum to decide the industrial dispute. However, in case the Government decides not to refer the dispute to the Labour Court, the State Government is legally required to give reasons, in writing, and to furnish the reasons to the concerned parties. 17. In the case of Syndicate Bank ( AIR 1995 SC 319 ) (supra), one of the issues that the Apex Court was ceased of was whether the High Court has the power/jurisdiction to declare the strike to be an illegal one or not? The Apex Court has observed as under: 26..........We are afraid that the High Court has exceeded its jurisdiction in recording the said findings. It is the industrial adjudicator who had the primary jurisdiction to give its findings on both the said issues. Whether the strike was legal or illegal and justified or unjustified, were issues which fell for decision within the exclusive domain of the industrial adjudicator under the Act and it was not primarily for the High Court to give its findings on the said issues. The said issues had to be decided by taking the necessary evidence on the subject. 18. The Apex Court has further held as under:-- 27. It has to be remembered in this connection that a strike may be illegal if it contravenes the provisions of Sections 22, 23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to the strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its findings on the said issue by examining all the pros and cons of the dispute as arm other dispute between the employer and the employee. (Emphasis supplied) 19. Finally, the Apex Court concluded as under:-- 32. We are, therefore, more than satisfied that the High Court in the present case had erred in recording its findings on both the counts, viz., the legality and justifiability, by assuming jurisdiction which was properly vested in the industrial adjudicator. The impugned order of the High Court has, therefore, to be set aside. 20. Considering the fact that the legality, or illegality of a strike will require submission of evidence from the parties, considering the fact that it will raise disputed, and complicated question of facts, and considering the principles settled by the Supreme Court in the case of Syndicate Bank (supra), it would not be proper for this Court to invoke its writ jurisdiction, and to declare the strike being observed by the respondent Nos. 6 and 7 as an illegal one. Therefore, the prayer that this Court should declare the said strike as illegal one is clearly unacceptable. 21. However, merely because the strike cannot be declared as illegal by this Court, does not absolve the State Government of its duty under Section 12(4) of the Act, to refer, or not to refer the dispute. The duty to exercise its discretion continues to exist in the State Government. The State Government cannot maintain a studied silence over the failure report submitted by the Conciliation Officer. Therefore, this Court directs the Commissioner, Labour, to decide under Section 12(4) read with Section 10 of the Act, whether to refer the industrial dispute, or not to refer the industrial dispute. If the Commissioner decides not to refer the industrial dispute to the Labour Court, the Commissioner, Labour, is directed to give reasons for not referring the dispute, in writing, and to give the said reasons to the concerned parties. If the Commissioner decides not to refer the industrial dispute to the Labour Court, the Commissioner, Labour, is directed to give reasons for not referring the dispute, in writing, and to give the said reasons to the concerned parties. The said decision shall be taken within a period of two weeks from the date of receipt of certified copy of this order. 22. Another prayer made by the petitioners is that this Court should direct the Corporation, and the State Government to negotiate with the trade unions. The word "negotiation" itself implies an element of "freewill" and "consent". In case, the negotiations were to be entered into at the direction of a Court, obviously the negotiation is not out of "freewill". Undoubtedly, such a negotiation would be "under duress" and "under compulsion" of having to follow a direction of the High Court. Therefore, this Court refrains itself from issuing such a direction to the Corporation, or to the State Government. 23. From day one, the concern of this Court has been the plight of the common man who continues to hopelessly hope that the bus transportation would be restored to its normalcy, and he would have sufficient means to travel throughout the State. Although, the learned Advocate General has pleaded that the Corporation, and the Government have made alternate arrangements, but this Court is informed that people are still waiting for sufficient number of buses to be plied on the road, so as to lessen their agony and suffering. In these circumstances, this Court does direct the State Government to ensure that sufficient number of buses are provided to the people at large, so as to ameliorate their conditions. 24. The learned Senior Counsel Mr. D. Prakash Reddy has sought a direction from this Court to the Corporation to take back the striking workers on duty if the trade unions were to call off the strike. This Court can only point out to the Corporation, and to the State Government that in case of Express Newspapers Private Limited ( AIR 1963 SC 1141 ) (supra), the Hon'ble Supreme Court has clearly opined that "when a worker goes on strike, he merely voices his concern that his working condition should be improved by meeting his demands. It is not the expression of an intention to abandon the work in which he/she is engaged". It is not the expression of an intention to abandon the work in which he/she is engaged". Therefore, neither the Corporation, nor the State Government would be justified in concluding that merely by going on strike, the workers have abandoned their duties. 25. Moreover, both the Corporation, and the State Government should keep in mind that the fight is not limited only to the Management and to the workers, but in case the workers are left out in the cold, eventually it is their families that suffer an economic death. Therefore, it is not a question of taking back merely the work force, consisting of about 48,000 workmen, but the issue is with regard to 48,000 families, which may run into lakhs. Therefore, the pertinent question to be decided both by the Corporation, and by the State Government is whether such a large number of people can be abandoned to fend for themselves, and to be left out in the cold? Given the high degree of unemployment in this country, given the age limit which are necessarily placed for appointments, it may not be an easy task, in fact, it may be an impossible task for the workmen to find an alternate job, in case the Corporation decides not to take them back. However, having said this, this Court leaves it to the discretion of the Corporation, and to the State Government to deal with the workmen in accordance with law. But simultaneously, this Court hopes that the Corporation, and the State Government would remember that under the constitutional provisions, both the Corporation and the State Government are legally bound to look after the interests of the workmen. Moreover, law requires the Corporation and the State Government to act as a model employer. It necessarily entails that an employer should show generosity even to an erring employee, and should be filled with a sense of kindness and compassion towards those who are related to an employee, such as his family members. Therefore, this Court hopes that as far as the issue of dealing with the employees is concerned, both the Corporation, and the State Government would rise to the occasion, and would try to resolve this apparently unsolved problem in as short period as possible. Therefore, this Court hopes that as far as the issue of dealing with the employees is concerned, both the Corporation, and the State Government would rise to the occasion, and would try to resolve this apparently unsolved problem in as short period as possible. All said and done, till this dispute is resolved, it is the people of the State who continue to reel under an indescribable and unfathomable agony and suffering. 26. Mr. D. Prakash Reddy, learned Senior Counsel, also submits that in the communication dated 05.10.2019 sent by the Conciliation Officer and Joint Commissioner of Labour, to the Commissioner of Labour, the Conciliation Officer has not only pointed out that the reconciliation proceedings could not lead to a settlement, but also pointed out and concluded that the strike is an "illegal" one. The learned Senior Counsel pleads that such an observation should be ignored by the Commissioner of Labour, and certainly by the Labour Court, while deciding the issue whether such a strike is legal or illegal one. 27. In the opinion of this Court, the duty of the Conciliation Officer under Section 12 of the Act is limited only to the extent of informing the Government as to the final outcome of the conciliation proceedings, namely whether it has ended in a settlement or in a failure? However, it is not within the power of the conciliation officer to make any further observation especially with regard to the nature of the strike whether it is a legal or illegal one. Therefore, the observation made by the Conciliation Officer in the communication dated 05.10.2019 should be ignored both by the Commissioner of Labour, as well as by the Labour Court. 28. The writ petitions stand disposed of in the above mentioned terms., Miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.