Dec ~ v. WORKERS OF THE BUCKINGHAM AND CARNATIC CO. L'l'D

The Mills as well as the Union appealed against this decision to the Labour Appellate Tribunal. That Tribunal upheld the contention of the Mills that the adjudjcator had no power to interfere with and revise the discretion of the management exercised by it under It also upheld the contention of section 49-B (1). the Union that what happened on the night of L;t November did not amount to a strike and did not cause any interruption in the workers' service. i~ wh.at the Tribunal said:- ,, It wonld be absurd to hold that non-permitted absence from work even for half an hour or less in the course of a working day would be regarded as inter ruption of service of a workman for the purpose of the said section. \Ve are inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the case is not to be regarded as a strike so as to amount to ·a break in the continuity of service of the workman concerned." In the result the appeal of the Union on this point was allowed and it was ordered that holidays at full rates as provided for in section 49-A of the Factories Act will have to be calculated in respect of the opera tives concerned on the footing that there was no break in the continuity of their service by the stoppage of work on 1st November, 1948. In this appeal it was contended on behalf of the Mills that on a proper construction of section 49-B ( l) \ - 222 SUPREME COURT 'REPORTS (1953] 1952 Buckingham and Carnatic Co. Ltd. v. Workers of the Buckingham and Carnat1c Go. Ltd. Mahajan J. of the Factories Act (XXV of 1934) the manage ment was right in its decision that the continuity of service was broken by the interruption caused by the illeg;;tl strike and that the workers were not entitled to annual holidays. with pay uudQr the said section inasmuch as they would not have completed a period of twelve months' continuous service in the factory, and that the non- permitted absence as a result of concerted refusal to work even for 2 to 4 hours in the course of a working day amounts to an illegal strike and consequently an interruption of service of a work man for the purpose of section 49-B. ; In onr judgment, this contention is well founded. Section 49-B provides- "Every worker who has completed a period of twelve months continuous service in a factory shall be allowed, during the subsequent period of twelve months, holidays for a period of ten, or, if a child, fourteen consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under sub- section (l) of section 35 .......... ". "Explanation.-A worker shall be deemed to have completed a period of twelve months continuous ser vice in a factory notwithstanding any interruption in service during those twelve months brought about by sickness, accident or authorized leave not exceeding ninety days in the aggregate for all three or by a lockout, or by a strike which is not an illegal strike, or by intermittent periods of involuntary unemployment not exceeding thirty days ...................... " It is clear that the benefit of this section is not avail able in cases where the interruption in service is brought about by an illegal strike. Section 2 ( q) of the Industrial Disputes Act (Act XIV of 1947) defines "strike" as meaning- _ "a cessation of work by a body of persons em ployed in any industry acting in combination, or a concerted refusal, or a refusal under a common under standing, of an~ number of persons who are or hiwe Buckitiaha11i rMd Garnatic Go. Lt1. v, Workers of the Buckinghani and Garnatic Go. Ltd. Mnhajm J. S.C.R. SUPREME COURT REPORTS 223 been so employed to continue to work or to accept employment." The adjudicator found on the evidence and circw.m stances of the case that there was concert and combi nation of the workers in stopping and refusing to resume work on the night of the 1st November. He observed that the fact that a very large number of leave applications was put in for various re·asons pointed to the concerted action and that the appli cation. given by the workers and their representa tives also indicated that they were acting in combina tion both in striking and refusing to go back to work on the ground that they were entitled to leave for the night shift whenever a half a day's leave was granted to the day shift workers. He further held that the refusal of the workers to resume work in spite of the attempts made by the officers and their own Madras Labour Union representatives indicated that they were not as a body prepared to resume work unless their demand was conceded. In our. opinion, the conclusion reached by the adjudicator was clearly right and the conclusion can not be a.voided that the workers were acting in concert. That being so, the action of the workers on the night of the 1st November clearly fell within the definition of the expression "strike" in section 2( q) of the Industrial Disputes Act. We have not been able to appreciate the view expressed by the Appellate Tribunal that stoppage of work for a period of two to four hours and such non-permitted absence from work cannot be regarded as strike. Before the adjudicator the only point raised by the Union was that it was a spon taneous and lightning strike but it was not said by them that stoppage of work did not fall within the definition of "strike" as given in the Act. It cannot be disputed that there was a cessation of work by a body of persons employed in the Mills and that they were acting in combination and their refusal to go back to work was concerted. All the necessary in gredients, therefore, of the definition exist in the pre sent case and the stoppage of work on 1st November, /o - 224 SUPREME CODR'l' ltEPOR'.t'S (1953) d h 1952 co. Ltd. v 1948, amounted to a strike. individual worker's failure to turn up for work. It was not a case of an It · Iluckin, ghn1n and carnatic wa~ a concerte act10n on t e part o a arge num er of workers. The Appellate Tribunal was thus in error in not regarding it as a strike and it had no discretion Workers of the not to regard what in law was a strike as not amount If it cannot be denied that the stop Bl!ckingham and Carnat.c page• of work on 1st November, 1948, amounted to a. strike, then it was certainly an illega 1 strike because Co. Ltd. Mahajan J. no notice had been given ·to the management, the ing to a strikff. f 1 b Mills being a public utility industry. It was contended by the President of the Union, who argued the case on behalf of the workers, that the Factories Act had no application to this case, because by a notification of the Government of Madras the Buckingham and dated 23rd August, 1946, Carnatic Mills had been exempted from the provisions of Chapter IV-A of the Act and ~he provisions of sections 49-A and 49-B were not therefore attracted to it and that no substantial question of law in respect to the construction of the section fell to be decided by this Court and that being so, this Court should not entertain this appeal ·under article 136 of the '!'he Constitution. Mills were granted exemption from the provisions of Chapter IV-A of the Factories Act because thei1· leave rules were in accordance with the provisions of Chapter IV-A of the Factories Act. These rules being in similar terms, the decision of the matter depends on the construction of the rules and this in volves a substantial question of law. '!.'his contention has no validity. Reliance was next placed on section 49-A of the Factories Act which provides that the provisions of the new Act would not operate to the prejudice of any rights which the workers were entitled to under the earlier rules and it was argued that under the leave rules of the Mills which prevailed pl'ior to the com ing into force of the Factories Act, the workers were entitled to privilege leave and there was no provision in those rules similar to the one that has been made in section 49-B or in the new rules and that the Mills ' ' - • ' ' 1952 B ucliingl; am and Carnatic Co. Ltd. v. TVorlcers of th~ B"c!cingham and Carnatic Co. Ltd. S.C.R. SUPREME COURT REPOR'rs 225 had no right to deprive them of leave by reason of the strike. This contention cannot be sustained because section 49-A (2) of the Factories Act pas n'o application to the case of the Carnatic Mills in view of the notification dated 23rd August, 1946. Lastly, it was urged that the stoppage of .work on 1st November, 1948, was not a concerted action on .the part of the workers and that several workers in their own individual capacity wanted leave on that date. In our opinion, in view of the facts and circum stances detailed in the adjudicator's award this con tention cannot be seriously considered. We concur in the view of the facts taken by the adjudica.tor that the action of the 859 workers on the night of 1st November, 1948, fell within the definition of the word "strike" as given in section 2(q) of the Industrial Disputes Act and it waR an illegal strike and the workers thus lost the benefit of holidays that they would have otherwise got under the rules. 'rhe learned counsel for the appellant undertook on behalf of the management ex gratia that it would con done the default of the workers on lst N overnber, 1948, and the cessation of work on that night would not be treated as depriving them of the holidays under the rules and we appreciate the spirit in which this under taking was given and hope that the workers would also take it in that spirit. The result is that the appeal is allowed, and the decision of the Labour Appellate Triburial on this point is Ret aside. In the circumstances of this case we make no order as to costs. Appeal allowed. Agent for the appellant: 8. P. Vannri.