ORDER
M.M. Kumar, J.
1. This order shall dispose of C.W.P.Nos. 2267 and 2289 of 1988. Both the petitions are directed against the award dated August 7, 1987 (Annexure P.1) passed by the Industrial Tribunal, Chandigarh. The first petition has been filed by the Employees Union of Post Graduate Institute of Medical Education and Research (for brevity 'PGI Union') and the second petition has been filed by the P.G.I. (for brevity 'the Management'). The Industrial Tribunal vide its award has held that the strike w.e.f. January 16, 1980 to February 3, 1980 although conformed to the provisions of Section 22 of the Industrial Disputes Act, 1947 (for brevity 'the Act') yet it was not justified. On sympathetic consideration, the Tribunal has awarded 25 per cent of back wages for the strike period. Various other demands of the PGI Union have also been considered and certain directions have been issued.
2. Brief facts of the case are that on September 9, 1980, the PGI Union served a demand notice which was comprised of 15 demands on the management. Those demands were not accepted by the management which led to service of notice of strike on November 14, 1979. It was also intimated that if the demands of PGI Union were not met before December 12, 1979 it proposed to observe strike in accordance with the provisions of the Act. Both the parties appeared before the Conciliation Officer, U.T. Chandigarh and on December 5, 1979 a meeting was also held between the PGI Union and the management. On December 11, 1979, the Director of the Management requested the Conciliation Officer to grant them a week's time for acceptance of their demands which were to be considered in the Governing Body meeting fixed for December 14, 1979. The strike was postponed. For some reasons, the meeting of the Governing Body was not held on December 14, 1979 and was deferred to some other date. As the PGI Union has served notice for observing strike it decided to go on strike w.e.f. December 21, 1979. On December 20, 1979, the Conciliation Officer visited the PGI and requested both the parties to attend the meeting in his office. Even Medical Superintendent Dr. B.S. Mathur appeared on behalf of the management and an agreement was signed by both the parties accepting all the demands of the PGI Union except demand Nos. 4 and 5 (Exhibit M.1). It appears that Dr. Mathur had assured PGI Union that all the demands except demand Nos. 4 and 5 were acceptable in principle which were being processed by the Ministry for final decision that was expected within few days. The strike was deferred and not withdrawn. When Dr. G.S. Lekhi, the Director of Management came back from foreign tour he addressed a letter to the Labour Commissioner, U.T. Chandigarh that the strike was only postponed and not withdrawn and therefore the agreement signed on December 20, 1979 was not acceptable to the Management as it had become inoperative and invalid. The letter of the Director of Management led to observing of strike by PGI Union w.e.f. January 16, 1980 to February 3, 1980 which is claimed to be justified and legal. It is in this back-ground that the PGI Union has claimed wages for the strike period asserting that the strike was lawful and justified.
3. The management has placed reliance on the principle of 'no work no wages' and has also termed the strike as illegal and unjustified. It is further claimed that one Khehar Singh General Secretary of PGI Union was charge sheeted for committing misconduct on December 13, 1979 and the demand notice was served on November 14, 1979 in order to forestall the enquiry proceedings against him. The management has accepted that all the demands of PGI Union were under sympathetic consideration of the management and all efforts were being made to settle the dispute by getting the demands conceded from the concerned Ministry. It has further been claimed that the Director held meeting with the PGI Union on November 24, 1979 and explained to them that all the major demands were to be placed before the next meeting of the Governing Body and the PGI Union was impressed upon to not to resort to strike and to withdraw the notice of strike. In other words, it was asserted that the Management never refused to consider their demands or rejected their demands. When all efforts had failed and the dispute could not be resolved, the Chandigarh Administration referred the demands of the PGI Union at Serial Nos. 1, 3, 5, 6, 8 and 13 for adjudication of the Industrial Tribunal by framing the following issue:
'Whether the demands of the workmen Union mentioned at Serial Nos. 1, 3, June 5, 2008 and 13 of the demand notice dated September 9, 1980 are justified? If so, to what relief the workmen are entitled to, if any?'
4. The Industrial Tribunal after completion of pleadings, framed the following two issues:
1. Whether the, PGI employees Union is competent to represent the PGI employees in this case and to raise demand as have been raised in demands mentioned at Serial Nos. 1, 3, 5, 6, 8 and 13?
2. Whether the demands of the workman union mentioned at Serial Nos. 1, 3, 5, 6, 8 and 13 of the demand notice dated September 9, 1980 are justified?
5. The Tribunal has recorded that in support of their case the PGI Union did not adduce any evidence whereas the management examined one Prem Chand MW 1. Both the parties had placed on record written arguments and the oral submissions.
6. The first issue was decided in favour of the PGI Union by holding that the Union was competent to represent the employees and to raise demands at Serial Nos. 1, 3, 5, 6, 8 and 13. However, on Issue No. 2 the Tribunal has given the finding demand-wise. Demand No. 1 pertains to payment of wages for the strike period w.e.f. January 16, 1980 to February 3, 1980. After considering the whole evidence, written arguments and oral submissions, the Tribunal has concluded that although strike observed by the PGI Union was legal inasmuch as it was in conformity with Section 22 of the Act but it was not justified because their demands were under active consideration of the management. The views of the Tribunal on demand No. 1 read as under:
'Even thereafter management was making all efforts to consider the demands of the Union and the management had never refused to consider their demands. So, when the management was undertaking to consider their demands, the action on the part of the union to go on strike appears to be harsh and unjustified. They should have given sufficient time to the management for conceding their demands which were referred to the Union Ministry of Health. However it cannot be said that the strike was illegal because they had proceeded on strike after giving notice as required by Section 22 of the Industrial Disputes Act. However claim to strike pay is not authorised by law for the strikers voluntarily abstained from work. Strike pay is awarded only as a measure of social justice by Industrial Tribunal on account of economic, disparity between employer and employees and parties are adversely affected by the strike. So in such circumstances workers have no legal right to claim pay for strike period. However, on sympathetic grounds I order that 25 percent of the total strike period amount to be paid to the workers.'
7. Demand No. 3 of the PGI Union was for the grant of regular pay scale to the daily wage employees. It was also claimed that they should be given annual increments with other facilities. The management had taken the stand that cases of daily wage employees have always been considered sympathetically and, as and when the posts became available such employees have been made regular, disclosing the figure that 227 work charged employees were made regular out of 250 as in December, 1981. It was also claimed that the management had created the cadre of work charged employees on the pattern of Central Public Works Department, New Delhi and the age of superannuation is 60 years. After considering the rival claims, the Tribunal concluded as under:
'In such circumstances when the management had already regularised 220 persons out of 250 as existing in December, 1981 and as the management has alleged that case of other workers is suitably considered, it is more than evident that PGI authorities are already sympathetically dealing with the daily wage workers. However, a direction is given to them that Daily wage workers be made regular work-charge as and when the posts become available with them.'
8. The PGI Union had also demanded bonus to Class III and IV employees because the management earn profit by treating patients. It was claimed that the PGI Union was entitled to bonus on the pattern of Railways and Post and Telegraphs Department. However the management controverted the claim by submitting that bonus on the principle of productivity linked scheme on the pattern of Postal and Railway Department cannot be granted to PGI Union as those departments were running on commercial basis while the management was running on social welfare considerations and was not a profit earning venture or a commercial organisation. On the basis of the aforementioned submission of the management this issue was decided against the PGI Union.
9. The next demand was that 100 per cent promotion should be made from the department. The management took the stand that service rules were framed in 1983 where a provision has already been made for 100 per cent departmental promotion in the grade where senior higher grade exists. The Tribunal had issued directions to the management to give effect to these provisions in letter and spirit.
10. Demand No. 8 has been rejected by the Tribunal. It was claimed that the employees who have been working in PGI Chandigarh before the commencement of PGIMER Act, 1966 and those who have come by way of transfer to the PGI on the same remuneration, same terms and conditions etc. should be applicable to them. However the Regulations framed by the Management under Section 32 of the Act and the Rules framed under Section 31 of the Act were applied to the transferred employees despite the fact that earlier rules applicable to the transferee employees were never repealed or annulled by any Rule or Regulation of the Government of India. It was alleged that the Director of the Management changed the service conditions of transferee employees in respect of leave, pension, gratuity, promotion and other matters to their disadvantage on April 5, 1977 which was against the provisions of the Act and that has resulted in reduction in Casual Leave, House Rent Allowance and Capital Compensatory Allowance. The demand was contradicted by the management by asserting that Rules and Regulations framed under Sections 31 and 32 were equally applicable to the employees whether recruited before or after the commencement of 1966 Act which provide, complete protection to the employees. It was further claimed that the bonus scheme was introduced on the Central Government pattern and that the PGI was not entitled to claim interim relief on the Punjab pattern. The demand was rejected by the Tribunal by observing as under:
'So when the employees are given relief on the central pattern which is much more than Punjab and when they have given other benefits much more than Punjab and have also given other benefits such as bonus which is not granted by the Punjab Government. Moreover workers have not led any evidence to justify this demand. They have not led any evidence to show that rules have been changed to the disadvantage of the workers. They cannot take advantage of both which are available to them on the central pattern or Punjab pattern. Either they would be governed by Punjab pattern or they will be governed by central pay scale pattern. They cannot claim one good thing from one pattern and another from other pattern. Consequently I find no force even in this demand and the same is rejected.'
11. The last demand considered by the Tribunal is with regard to vacations to para medical and non-medical staff at par with the vacations granted to the teaching staff. The demand has been rejected by observing as under:
'This demand of the workers cannot be accepted because according to PGI (Amendment) Regulations, 1970 Professors (including Director, Professors and Additional Professors) Associate Professors, Assistant Professors and Lecturers have been treated as serving in vocational department. However, other doctors who are even working as senior residents are not entitled to vacations. So category of lecturers and professors mentioned above have been ordered to be treated as serving in vocational department are entitled to vacations. However, other staff cannot be allowed to be treated to be serving in vocational department. Even during vacation period 50% of the staff of each department remain on duty and work of teaching is not hampered. Academic and teaching sessions are held. So, the teaching staff go on leave by rotation. Hence the hospital does not suffer in any manner. However, this concession cannot be granted to other employees of the PGI. Other employees of the Institution are granted earned leave under Central Civil Services (Leave) Rules, 1972. Other ministerial and technical staff are given overtime for extra duty performed by them. However, this facility is not available to staff working in the medical department. Workers have not led any evidence to justify this demand. Even otherwise I am of the opinion that this demand of the workers is wholly unjustified and cannot be accepted.'
12. Shri D.S. Nehra, learned senior counsel for the management has argued that the Tribunal has committed grave error in law by awarding 25 percent of wages of the strike period while considering Demand No. 1 on sympathetic basis. According to the learned Counsel there are categorical findings by the Tribunal in concluding part of para 6 of Demand No. 1 that the strike might be legal but it was not justified on account of the fact that once the management was making all efforts to consider the demands of the PGI Union and had never refused to consider the same then the act of the Union to observe strike from January 16, 1980 to February 3, 1980 was absolutely unjustified. Learned Counsel has maintained that in law two elements must co-exist in order to earn wages for the strike period namely, the strike must be both legal and justified. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Syndicate Bank v. K. Umesh Nayak : AIR1995SC319 and Bank of India v. T.S. Kelawala : (1990)IILLJ39SC . Learned Counsel has also argued that the High Court under Article 226 of the Constitution cannot reverse the finding recorded by the Tribunal concluding that the strike observed by the union was unjustified. Referring to the observations made in para 26 by the Supreme Court in the judgment in Syndicate Bank's case (supra), learned Counsel has submitted that it is the Industrial Tribunal who enjoys primary jurisdiction to give its finding on the issue whether the strike was justified and legal and the High Court would overstep its jurisdiction if it set aside that finding. He has, therefore, prayed that the award be set aside to the extent it has awarded 25 percent of wages for the strike period i.e. January 16, 1980 to February 3, 1980 because there is no legal basis to award wages on sympathetic consideration. During the course of arguments, Shri Nehra has referred to an order dated March 23, 2005 passed by this Court which is to the effect that no wages in terms of the award dated August 7, 1987 have been so far paid because the award of 25% wages by the Tribunal is not in accordance with law.
13. Learned Counsel has also argued that the management, is a Premier Institute of national importance and it is not run on commercial considerations. The basic object of the institute is treatment of patients suffering from serious ailments based on continuous research guided by eminent professors and scholars. It has therefore been claimed that there is no question of grant of bonus under Section 16(1) of the Payment of Bonus Act, 1965.
14. Shri Nehra has further submitted that there is continuous policy of regularisation of work charged employees and even when the adjudication before the Tribunal was in progress 227 out of 250 employees had already been made regular as in December, 1981. The aforementioned policy along with various amendments is being followed.
15. Shri R.S. Chahar, learned Counsel for the PGI Union has made an attempt to argue that the finding of the Tribunal holding that the strike was not justified is liable to be set side because after the withdrawal of agreement entered into between the parties on December 20, 1979 at the instance of the Director of PGI, the union did not have any choice except to resort to strike which they observed from January 16, 1980 to February 3, 1980. Learned Counsel has submitted that arrogant attitude adopted by the Director of the Management brought enough justification to the PGI Union to observe strike. He has claimed that 100 per cent wages described to be awarded to the PGI union on the ground that the strike was legal and justified and that the Tribunal had committed grave error by refusing the grant of wages for the strike period.
16. Learned Counsel has further argued that the PGI Union was entitled to payment of bonus as 1965 Act would be applicable to PGI as well.
17. I have thoughtfully considered the submissions made by the learned Counsel for the parties and am of the view that the petition filed by the management (CWP No. 2289 of 1988) deserves to be partly allowed because 25% of wages for the strike period w.e.f. January 16, 1980 to February 3, 1980 could not be awarded to the PGI Union on sympathetic consideration. The view of the Tribunal while considering Demand No. 1 under Issue No. 2 in unequivocal terms highlight the stubborn attitude adopted by the workers Union shows that the PGI Union was bent upon to resort to strike. Once the management has not rejected their demands and was actively considering the same by placing it before the Governing Body there could hardly be any justification to resort to strike. It is true that the strike was legal inasmuch as notice under Section 22 of the Act had been served. There is no justification in law to award wages for the period when an employee does not work.
18. It is well settled principle that in order to earn wages a worker must prove that the strike was legal as well as justified. If any of the two elements is missing then workman has to lose back wages. In the present case, the workers have to lose the back wages because the strike has been held to be unjustified. In this regard the view of the Supreme Court in the case of Syndicate Bank (supra) can be relied upon. The Supreme Court placing reliance on the view taken in the earlier judgments in the cases of T.S. Kelawala (supra) and explaining the judgments in the cases of Churakulam Tea Estate v. Workers, : (1969)IILLJ407SC , Crompton Greaves v. Workers : (1978)IILLJ80SC and India General Navigation and Railways Co. Ltd. v. Workmen, : (1960)ILLJ13SC has concluded as under 1994-II-LLJ-836 at p. 848:
'6. There is, therefore nothing in the decisions of this Court in Churakulam Tea Estate and Crompton Greaves cases (supra) or the other earlier decisions cited above which is contrary to the view taken in T.S. Kelawala. What is held in the said decisions is that to entitle the workmen to 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 the strike period. In fact, in India General Navigation case (supra), the Court has taken the view that a strike which is illegal cannot at the same time be justifiable. According to that view in all cases of illegal strike, the employer is entitled to deduct wages for the period of strike and also to take disciplinary action. This is particularly so in public utility services.
We, therefore, hold endorsing the view taken in T.S. Kelawala that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the Industrial adjudicator, it being an industrial dispute within the meaning of the Act.'
(Emphasis added)
19. When the principles laid down by the Supreme Court are applied to the facts of the present case it becomes evident that this Court in exercise of jurisdiction under Article 226 cannot sit as a Court of appeal to reverse the finding that the strike was justified and that two elements are necessary for earning wages during the strike period namely that the strike was legal as well as justified. The PGI union has not been found to be justified in resorting to strike for the period commencing from January 16, 1980 to February 3, 1980. Therefore, the award of the Labour Court dated August 7, 1987 is liable to be modified and the award of back wages of 25 percent awarded on sympathetic consideration to that extent is set aside.
20. I am further of the view that bonus was not payable to PGI Union on the principle of productivity linked scheme on the pattern of Postal and Railway Departments because those departments are running on commercial lines whereas the PGI is an institution of social welfare and there is no commercial activity.
21. No other argument has been raised.
22. Both the petitions stand disposed of.