Feroz Din And Others vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 48 of 1958

Decision Date: 25 November 1959

Coram: A.K. Sarkar, S.K. Das, M. Hidayatullah

In this matter the Supreme Court of India noted that the petition was titled Feroz Din and Others versus the State of West Bengal and that the judgment was delivered on 25 November 1959. The judgment was authored by Justice A K Sarkar, with Justices S K Das and M Hidayatullah sitting on the bench. The petitioners were identified as Feroz Din and others, while the respondent was the State of West Bengal. The citation for the decision was recorded as 1960 AIR 363 and 1960 SCR (2) 319, with further citator information indicating a reference in the 1968 Supreme Court reports. The case concerned the application of the Industrial Disputes Act, 1947 (14 of 1947), specifically sections 27, 24, and 2(1), and raised the questions of whether a notice of discharge amounted to a lock-out, whether the sanction to prosecute was proper, and whether the facts constituting the alleged offence were shown on the face of the sanction.

The Court described the factual background as follows: a company dismissed four of the appellants because they had participated in and encouraged others to join an illegal slowdown strike in the Hot Mill Section of its works, which were regarded as a public utility service. After the dismissals the slowdown strike intensified. The company then issued a notice dated 8 April 1953 to the Hot Mill workers stating that unless each worker voluntarily recorded his willingness to operate the plant at normal capacity before 2 p.m. on 10 April, he would be deemed no longer employed by the company. Forty workers complied with the request; the remaining workers gave no response. Subsequently, the company issued a second notice dated 25 April, indicating that those who had not recorded their willingness under the first notice were considered to be no longer in service and that their formal discharge had been kept pending so as to ensure that no worker who wished to return to normal work would be discharged on mere assumptions. The second notice called on the workers to record their willingness by 28 April 1953 and warned that failure to do so would result in their names being removed from the company’s rolls and their discharge becoming fully effective with all the legal consequences of such a discharge.

Following the issuance of the second notice the entire workforce of the establishment, except those employed in essential services, went on strike. With the sanction of the Government, the company then filed a complaint under section 27 of the Industrial Disputes Act against the appellants, alleging that they had instigated and incited others to take part in an illegal strike. The appellants were convicted on that charge. They challenged the conviction, contending that the strike was not illegal because it was a response to an illegal lock-out created by the company through the notices of 8 April and 25 April. They further argued that the notices did not constitute a discharge but rather declared a lock-out, and that even if the notices were deemed to effect a discharge, the legal consequences would remain the same.

In this case the appellants argued that a lock-out had occurred, maintaining that a discharge of a workman is in law equivalent to a lock-out. They also contended that the sanction authorized under section thirty-four of the Industrial Disputes Act for making a complaint was improper because the sanction, on its face, did not set out the facts that made up the alleged offence. The Court held that, when the notices issued by the employer are examined, they were intended to discharge the workmen and therefore did not constitute a declaration of a lock-out. The removal of a worker’s name from the company’s register was described in the notices as a mere formality that had been postponed; this postponement did not stop the discharge from taking effect. The Court further observed that the expression “refusal by an employer to continue to employ any number of persons employed by him” found in section two of the Act does not embrace the act of discharging an employee. Regarding the sanction under section thirty-four, the Court held that such a sanction would be valid if evidence showed that the sanctioning authority had considered all the necessary facts before granting it, even though those facts were not spelled out in the written sanction itself. The Court approved the decision in Presidency Jute Mills Co. Ltd. v. Presidency Jute Mills Co. Employees, Union, [1952] I.A.C. 62, and discussed the principles laid down in Gokalchand Dwarkadas Morarka v. The King, (1948) L.R. 75 I.A. 30.

The judgment was delivered in criminal appellate jurisdiction for Criminal Appeal number forty-eight of 1958. The appeal was granted special leave from a July 1956 judgment and order of the Calcutta High Court in Criminal Revision number one thousand five of 1955, which arose from a July 1955 judgment and order of the Additional Sessions Judge, Asansol, in Criminal Appeal number one hundred twenty-five of 1955. Counsel for the appellants were appointed to present their case. Counsel for the respondent, the State of West Bengal, were appointed, as were counsel for the interveners. The judgment was pronounced on 25 November 1959 by Justice Sarkar. The matter involved five appellants, four of whom were employed by the Indian Iron & Steel Co., Ltd., while the fifth was an outsider. All five were convicted by a magistrate in Asansol of an offence under section twenty-seven of the Industrial Disputes Act, 1947, for allegedly instigating and inciting others to take part in an illegal strike. Each appellant received a simple imprisonment of three months. The Additional Sessions Judge of Asansol affirmed the magistrate’s order on appeal, and a revision petition to the Calcutta High Court was also dismissed. The appellants then obtained special leave to appeal to this Court. The State of West Bengal was the respondent, and the Indian Iron & Steel Co. was permitted to intervene. The company owned a factory at Burnpur near Asansol that operated a sheet mill, which had been declared a public utility service by the Government.

The Government declared the company’s operations to constitute a public utility service. Subsequently a slow-down strike occurred in the Hot Mill section of the Sheet Mill. In response, the Company served charge-sheets on several workers, including the four appellants who were its employees, on the grounds that they had participated in the slow-down strike, had encouraged others to join it, and had been guilty of additional misconduct. After conducting an enquiry, the Company dismissed the four appellants from their employment. Following these dismissals the slow-down strike intensified.

On 8 April 1953 the Company issued a notice to all workers of the Hot Mill. The notice declared that any worker who did not voluntarily record a willingness to operate the plant at normal capacity would be treated as no longer employed, and that the Company would recruit other labour to staff the plant. The notice instructed workers to record their willingness before Friday, 10 April at 2 p.m., failing which the stated action would be taken. As a result of this notice only forty workers of the Hot Mill recorded their willingness; approximately three hundred other workers gave no response.

On 11 April 1953 the workers throughout the Sheet Mill, numbering about one thousand three hundred, commenced a sit-down strike that continued until 20 April 1953. On 25 April 1953 the Company issued a further notice to the workers. That notice referred to the General Manager’s earlier notice of 8 April and stated that the workers who had not recorded their willingness by 10 April at 2 p.m. were deemed no longer employed. The Company explained that it had postponed formal discharge in order to ensure that no employee who wished to work normally would be dismissed on speculative grounds. The notice further observed that there were now no grounds to believe that any worker lacked the necessary information or opportunity to form a correct opinion on the conduct of certain workers. It attached a copy of a notice dated 22 April 1953 issued by the Directorate of Labour, Government of West Bengal, which had already been circulated in English and translated into Bengali, Hindi and Urdu. The final notice warned that any worker who did not record willingness to operate the plant at normal capacity by 11 a.m. on 28 April 1953 would have his name removed from the Company’s roll, his discharge would become fully effective on the grounds of serious breach of discipline, and his position would be filled either by promotion of existing staff or by engaging new workers.

It was recorded that, on 27 April 1953, the workers of the whole factory, except those who were engaged in essential services, went on strike and that the strike continued for twenty-two hours. On 19 May 1953, the Company lodged a complaint invoking section 27 of the Act, and this complaint had been sanctioned by the Government on 2 May 1953. The present appeal was filed on account of that complaint. The respondent contended that the strikes which occurred from 11 April to 20 April 1953 and the strike of 27 April 1953 were illegal and that the appellants had instigated those strikes. The appellants did not dispute the lower courts’ finding that the strikes had indeed taken place and that they had instigated them; instead, they argued that the strikes could not be characterized as illegal. Section 27 of the Act provides that a person who instigates or incites others to participate in a strike that is illegal under the Act, or who otherwise acts in furtherance of such a strike, commits an offence. The respondent’s case was that the strikes were illegal under section 24(1) of the Act, which states that a strike or a lock-out is illegal if it is commenced or declared in contravention of section 22. There was no dispute that the strikes contravened section 22. The appellants, however, relied on section 24(3) of the Act, which provides that a strike declared as a consequence of an illegal lock-out shall not be deemed illegal. They asserted that the strikes had been prompted by an illegal lock-out carried out by the Company against three hundred workers of the Hot Mill through notices issued on 8 April and 25 April. It was clear that, if such a lock-out had occurred, it would itself be illegal under section 24(1) because it would also be in breach of section 22. Consequently, the crucial question became whether the Company had, in fact, effected a lock-out. The learned counsel for the appellants first argued that the language used in the notices was identical to the language employed in the definition of “lock-out” contained in section 2(1) of the Act, and therefore, by virtue of those notices, the Company had lock-out the men. The Court found this argument to be unfounded. The definition, as far as it was material, reads: “lock-out means the refusal by an employer to continue to employ any number of persons employed by him.” In the notices, the expression used was “considered to be no longer employed,” whereas the definition employs the phrase “refusal by the employer to continue to employ.” Thus, the wording was not the same. Moreover, the words in the notices and those in the definition had to be read in their respective contexts. For reasons that would be explained later, the Court concluded that the language in the notices signified a discharge of the employees from service, while the definition did not contemplate such a discharge of workmen. The lower courts had arrived at the finding that, by virtue of those notices, the three hundred workers of the Hot Mill had been discharged on 10 April 1953 and had not been subjected to a lock-out.

In this matter, counsel for the appellants argued that the lower courts had erred in their conclusions. He presented his contentions in two parts. First, he maintained that the notices issued by the Company did not constitute a discharge of the workers until the eleventh hour of 28 April 1953, and that, in the interval from 10 April 1953, the workers had been subject to a lock-out because, although their services had not been formally terminated, they were not permitted to attend their duties. Second, he asserted that even if the notices were construed to effect a discharge, such a discharge would nonetheless qualify as a lock-out within the meaning of the statutory definition, since the definition embraces the employer’s prevention of the workers from performing their work, whether or not the workers are formally discharged. The Court then asked whether the notices indeed effected a discharge. After reviewing the material, the Court agreed with the conclusions of the lower courts that the notices did bring about a discharge.

Counsel for the appellants further contended that when read together the two notices made it unmistakably clear that no employee had been discharged before 11 a.m. on 28 April 1953. He pointed to the notice dated 25 April, arguing that it demonstrated the notice of 8 April had not caused any discharge because it referred to the formal discharge as being kept pending and required the workers to declare their willingness to operate the plant at normal capacity by 11 a.m. on 28 April, warning that failure to do so would result in the removal of their names from the Company’s roll and the discharge would then become fully effective. The Court found that the notices could not be interpreted in the manner suggested. The notice of 8 April plainly stated that unless the workers communicated their willingness to work at normal capacity by 2 p.m. on 10 April, they would be considered no longer employed by the Company, which is equivalent to a discharge. This language, taken alone, permits no alternative construction. Moreover, the later notice of 25 April does not alter the meaning of the earlier notice. It expressly declares that the workers had been considered no longer employed from 10 April, thereby confirming that the discharge took effect on that date. While it mentions that the formal discharge had been kept pending, this merely indicates that the workers’ names had not yet been struck off the roll; the term “formal” underscores that the substantive discharge had already occurred. No argument was advanced that a discharge could not be said to exist until a worker’s name was removed from the roll, and the Court was not prepared to accept such a contention. The removal of a name from the roll follows the discharge, as reflected in the wording of the notice concerning the pending formal discharge.

In this case the Court observed that the argument that a worker could not be considered discharged until his name was removed from the company’s roll was not persuasive and would not have been accepted without further evidence. The Court explained that the removal of a name from the roll ordinarily follows the act of discharge, and that the phrase in the April 25 notice stating that “the formal discharge had been kept pending” was intended to convey that the actual discharge had already occurred. The circumstances surrounding the issuance of the April 25 notice demonstrated that the workers had, in fact, been discharged on 10 April 1953. The Court noted that the Labour Minister of the Government of West Bengal had intervened in the industrial dispute between the Company and its employees. The Minister met the workers and, on 21 April 1953—after the first of two strikes had ended—proposed certain settlement terms. The proposal directed that if the Hot-Mills workers who were deemed discharged as of 2 p.m. on 10 April 1953, because they had ignored the notice dated 8 April 1953, reported for duty immediately and expressed willingness to operate the plant at normal capacity, then the Government would recommend their reinstatement to management. A copy of this proposal was sent to the Company with a request that the Company implement the recommendations and give the proposal wide publicity. The Company circulated the Minister’s suggestion among the workers and, in order to comply with the Government’s request, issued the notice dated 25 April, attaching a copy of the proposal. Consequently, the Court held that the purpose of the April 25 notice was solely to comply with the Government’s suggestion, to cancel the discharge that had already taken effect, and to reinstate the Hot-Mills employees in their former positions provided they fulfilled their part of the suggestion. Accordingly, the notice did not support the contention that the workers remained undis­charged until 28 April 1953. The Court further observed that there was no evidence that, before 2 p.m. on 10 April 1953, any employee had been prevented by the Company from performing his duties. Turning to the next issue, the Court examined whether an employer’s discharge of employees could be characterised as a lock-out. It noted that some submissions argued that the definition of “lock-out” – the refusal by an employer to continue to employ any number of persons employed by him – should include discharge. The Court rejected this view, citing the decision of the Labour Appellate Tribunal in the case of Presidency Jute Mills Co. Ltd. v. Presidency Jute Mills Co. Employees Union, and affirmed that it agreed with that Tribunal’s reasoning. The Court concluded that interpreting the definition of lock-out to encompass discharge would be contrary to the overall purpose of the Industrial Disputes Act and inconsistent with the established meaning of a lock-out in industrial relations.

In the Court’s view, interpreting a lock-out to include a discharge would contradict the ordinary industrial-relations understanding of the term. Section 22 of the Act provides that, in a public-utility service, neither a worker may strike nor an employer may lock-out his workmen unless a notice of strike or lock-out has been given at least six weeks before the intended strike or lock-out, or, alternatively, a notice may be given fourteen days prior to the action, or the lock-out may be effected only after the date specified in such notice. In addition, a lock-out may not be imposed during the pendency of any conciliation proceedings before a conciliation officer, nor within seven days after those proceedings have concluded. Section 23 extends a similar prohibition to strikes and lock-outs in other industrial establishments by disallowing such actions while conciliation proceedings before a Board are ongoing and for a further seven days thereafter. Section 24(1) declares that any strike or lock-out carried out in violation of sections 10, 22 or 23 is illegal. Section 24(2) further provides that a strike that follows an illegal lock-out, or a lock-out that follows an illegal strike, shall not be deemed illegal. Section 25 makes it unlawful to spend money on any illegal strike or lock-out. Consequently, the Act places strikes and lock-outs on an equal footing, treating each as the counterpart of the other, with a strike being the workers’ weapon and a lock-out being the employer’s weapon. A strike does not entail the ultimate severance of the employer-employee relationship, and it would be incongruous if a lock-out were understood to do so. Under section 22, a lock-out in a public-utility service cannot be declared immediately; it may only take effect after the date fixed in the notice and not within fourteen days of the notice being given. If a discharge were to be regarded as part of a lock-out, then an employer in such a service would be barred from dismissing an employee until the prescribed time had elapsed. This restriction could frequently render the employer unable to continue his business, especially where an employee’s misconduct demands immediate dismissal. The Court recognized that such situations are not rare. If an employer were prevented, under the threat of criminal liability under section 27, from dismissing the employee at once, the employer’s operations could suffer irreparable harm or serious personal injury could be inflicted upon the employer or other workmen. The Court saw no indication that the legislature intended such a result. Moreover, treating a lock-out as including a discharge would create a conflict between sections 22 and 23 on one side and section 33 on the other. As previously noted, sections 22 and 23 forbid a lock-out of workers during the pendency of conciliation proceedings and for seven days thereafter. The argument advanced by the appellants’ counsel that no worker could be dismissed at all during that period, if a lock-out were understood to include a discharge, must be reconciled with the absolute prohibition contained in the relevant provision.

The provision contained in section thirty-three is absolute in its terms. Under section thirty-three an employer is forbidden, while a conciliation proceeding is pending, to dismiss any workman who is involved in the dispute for misconduct connected with that dispute, unless the employer obtains explicit permission from the authority before whom the proceeding is pending. Consequently, if a lock-out were interpreted to include a dismissal, sections twenty-two and twenty-three would bar any dismissal during the conciliation proceeding, whereas section thirty-three would permit a dismissal only with authority’s permission. Such a reading would lead to an absurd result, because the same act would be simultaneously prohibited and allowed. An amendment dated 2 October 1953 introduced new provisions into the Act, which demonstrate clearly that a lock-out, as defined in section two clause one, was never meant to embrace the dismissal of workmen. The amendment firstly added section two sub-paragraph (oo), which defines retrenchment as “the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action.” If a lock-out were to include a dismissal, then the definition of retrenchment in section two sub-paragraph (oo) would also fall within the meaning of lock-out. Clearly, if that were the case, the legislature would not have found it necessary to give a separate definition of retrenchment. The amendment also inserted section twenty-five F, which authorises a workman to be retrenched upon payment of one month’s wages, the prescribed compensation, and upon giving notice to the Government. Were retrenchment merely a form of lock-out, a direct conflict would arise between sections twenty-two and twenty-three on one side and section twenty-five F on the other. Although sections two sub-paragraph (oo) and twenty-five F were not in force at the time of the notices under consideration, section two clause one was left unchanged by the amendment and therefore retained its original meaning. The amendment makes it explicit that section two clause one does not encompass retrenchment; consequently, the definition could not have included retrenchment before the amendment. If the definition did not cover retrenchment, it could not cover dismissal, because retrenchment is merely one type of dismissal. Accordingly, the Court finds that the expression “refusal by an employer to continue to employ any number of persons employed by him” in section two clause one does not extend to the discharge of an employee. The Court encounters no difficulty in accepting this interpretation, since the words “refusal to continue to employ” in section two clause one are not plain synonyms for discharge. These words must be read in harmony with the remainder of the definition and with the term “lock-out,” which, as the definition shows, contemplates no severance of the employer-employee relationship.

The Court examined the term “lock-out” and noted that, as explained in the Presidency Jute Mills Co. case, the dictionary meaning of the expression denotes an employer’s refusal to provide work to his operatives unless the work is accepted collectively by them. The Court observed that this definition was reported in the 1952 Law Appeals Cases report at page 62. Consequently, the Court held that interpretative rules did not prevent the Court from ascribing to the words used in the statutory definition the meaning of an employer’s refusal to allow any number of his employees to perform their duties, provided that such refusal did not result in a termination of service, mirroring the approach adopted in the Presidency Jute Mills Co. decision. The Court further explained that this interpretation avoided a potential conflict between different provisions of the Act.

The Court then turned to the final issue raised, namely the propriety of the sanction required under Section 34(1) of the Act. Section 34(1) states that no court shall take cognisance of any offence punishable under the Act unless a complaint is made by or under the authority of the appropriate Government. Counsel for the appellants relied upon the decision in Gokalchand Dwarkadas Morarka v. The King, reported in the 1948 Law Reports (India) at page 30, where the Judicial Committee had examined a provision similar to Section 34(1). The counsel argued that the sanction issued by the Government of West Bengal to permit the filing of the complaint against the appellants was invalid because it had been granted without reference to the factual circumstances constituting the alleged offence.

The Court acknowledged that the sanction, on its face, did not set out the specific facts of the offence. However, the Court found that ample evidence had been placed on record, which the counsel for the appellants had not challenged. That evidence demonstrated that the complete factual matrix relating to the offence had been presented to the sanctioning authority and that the authority had granted the sanction after considering those facts. The Court noted that the Judicial Committee in the earlier case had observed that a sanction would be deemed valid if evidence showed that the sanctioning authority had been furnished with all necessary facts, even though those facts might not be enumerated on the sanction document itself.

Applying that principle, the Court concluded that the sanction in the present matter was not objectionable. Accordingly, the Court held that the appeal could not succeed. Nevertheless, the Court considered it appropriate, given the considerable lapse of time since the commencement of the proceedings, to modify the sentence that had been imposed.

The Court ordered that each appellant be sentenced to simple imprisonment for the period already served, together with a fine of one hundred rupees. In the event of non-payment of the fine, each appellant was to suffer simple imprisonment for fifteen days. Subject to this modification of the sentence, the Court dismissed the appeal. The appeal was therefore dismissed.