ADVERTISEMENT
Karnataka High Court
Bosch Automotive Electronics India Pvt … vs Addl. Labour Commissioner on 24 July, 2026
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WP No. 8044 of 2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2026
R
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 8044 OF 2026 (L-RES)
BETWEEN:
BOSCH AUTOMOTIVE ELECTRONICS INDIA PVT LTD.,
BUILDING NO.703, NAGANATHAPURA,
ELECTRONIC CITY POST OFFICE,
BENGALURU - 560 100
COMPANY INCORPORATED UNDER 1956
HAVING ITS REGD OFFICE AT BENGALURU
AND ENGAGED IN MANUFACTURE OF
AUTOMOTIVE ELECTRONICS COMPONENTS REPRESENTED
BY ITS SENIOR GENERAL MANAGER, HR SRI. SRINIVASA
B.A.
...PETITIONER
(BY SRI. C.K. SUBRAMANYA, ADVOCATE FOR
SRI. B.C. PRABHAKAR, ADVOCATE)
AND:
1. ADDL. LABOUR COMMISSIONER,
KARMIKA BHAVANA BANNERGHATTA ROAD,
BENGALURU - 560 029.
2. ROBERT BOSCH AUTOMOTIVE
ELECTRONICS EMPLOYEES UNION,
TRADE UNIONS OFFICE NO.172/2,
Digitally signed by
CHANDRASHEKAR GROUND FLOOR, 4TH MAIN, 7TH CROSS, CHAMRAJPET,
LAXMAN KATTIMANI
BENGALURU - 560018
Location: HIGH COURT
OF KARNATAKA REPRESENTED BY ITS PRESIDENT
DHARWAD BENCH
DHARWAD SRI. SOMASHEKARA.A.K.
UNDER INDIAN TRADE UNION ACT 1926.
...RESPONDENTS
(BY SRI. M. RAJAKUMAR, AGA FOR R1 (MA NOT FILED);
SMT. MAITREYI KRISHNAN, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT/DIRECTION QUASHING THE
STRIKE NOTICE DATED 23.2.2026 ISSUED BY THE SECOND
RESPONDENT AND DIRECTING THE SECOND RESPONDENT TO
RESTRAIN FROM GOING ON WITH STRIKE (ANNEXURE-C). II.
DIRECTION TO THE SECOND RESPONDENT EITHER BY THEMSELVES
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WP No. 8044 of 2026
OR THROUGH THEIR AGENTS, SUPPORTERS, ASSOCIATES,
PATRONS, MEMBERS AND ACCOMPLICES AGAINST PREVENTING OR
OBSTRUCTING THE EMPLOYEES, CONTRACT LABOURERS, AGENTS
CUSTOMER, CLIENTS ETC., IN FREE INGRESS TO OR EGRESS TO
THE FACTORY PREMISES AND ETC.,.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 27TH APRIL, 2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CAV ORDER
(a) Whether an industrial establishment, during the pendency
of conciliation proceedings, can maintain a writ petition to
restrain a strike by the workers' Union on the ground that
the proposed strike is prohibited under Section 62(1)(d)
and illegal under Section 63 of the Industrial Relations
Code, 2020?
(b) Whether an aggrieved party can approach the Industrial
Tribunal under the Industrial Relations Code, 2020,
challenging the legality of a proposed strike when
conciliation proceedings concerning the industrial dispute
are pending?
These two questions arise for consideration in this petition filed
by the Company challenging the legality of the intended strike
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WP No. 8044 of 2026
by the workers' Union, during the pendency of conciliation
proceedings.
BRIEF FACTS:
The petitioner is a registered Company and engaged in the
manufacture and supply of automotive electronic components
since 2009. For the purpose of deciding the present petition, it
is not necessary to refer to the circumstances leading to the
proposed strike. Suffice it to state that a dispute arose between
the petitioner-Company and respondent No.2-Union in relation
to the charter of demands.
2. The petitioner claims that, despite its best offer to
settle the charter of demands, the Union did not accept the
same. The Union, submitted a charter of demands dated
23.02.2026 for the period commencing from April 2026 to
March 2027, which, according to the petitioner-Company, could
not have been submitted. On the same day, i.e., 23.02.2026,
the Union issued the impugned strike notice intimating that the
strike would commence on or after 09.03.2026.
3. The petitioner submitted a representation to the
Deputy Labour Commissioner on 23.02.2026. Acting upon the
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representation said to have been submitted by the petitioner,
respondent No.1-Conciliation Officer issued a notice directing
the parties to appear for conciliation on 03.03.2026.
4. Admittedly, when the writ petition was filed on
09.03.2026, the conciliation proceedings had not concluded.
The conciliation proceedings, which commenced on 03.03.2026,
were adjourned to 06.03.2026 and thereafter to 10.03.2026. It
appears that the Union had decided to proceed with the strike
scheduled to commence from 09.03.2026 despite the statutory
prohibition against holding a strike during the pendency of
conciliation proceedings.
5. In the aforesaid factual background, the present
petition is filed contending that the proposed strike is illegal.
This Court granted an ex parte interim order restraining the
Union from proceeding with the strike.
6. Learned counsel for the petitioner-Company would
urge the following contentions:
(a) Section 62(1)(d) of the Industrial Relations Code,
2020 ('Code, 2020') prohibits a strike or lock-out
during the pendency of conciliation proceedings and
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for seven days after the conclusion of such
proceedings.
(b) Under Section 63 of the Code, 2020, a strike or lock-
out commenced or declared in contravention of
Section 62 is illegal.
(c) Since the conciliation proceedings are pending, the
petitioner cannot approach the Tribunal under the
Code, 2020 and, therefore, the writ petition is the
only remedy available to the petitioner.
(d) In the written submissions, it is further urged that
the workers' Union is recognised under the Code,
2020 and is bound by the provisions of the Code,
2020. Therefore, a writ petition is maintainable to
enforce statutory rights, prevent violation of
statutory provisions and enforce statutory duties cast
upon the Union.
7. Learned counsel for the petitioner places reliance on
the following judgments:
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WP No. 8044 of 2026
(i) Bharat Petroleum Corporation Ltd. Vs. Petroleum
Employees Union and Others1.
(ii) Tamilnadu Nugrporul Vaniba Kazhaga Anna Thozhir
Sangam Vs. Managing Director, Tamil Nadu Civil
Supplies Corporation and Others2.
(iii) United Labour Federation Vs. Union of India and
Another3.
(iv) Indian Oil Corporation Ltd. Vs. Karnataka Petroleum
& Gas Workers Union CITU Office and Others4.
(v) Workers of The Industry Colliery, Dhanbad v.
Management of The Industry Colliery5.
8. Learned counsel for respondent No.2-Union would
urge the following contentions:
(a) A writ of certiorari cannot be issued against a Trade
Union, as it is neither a Court, or a Tribunal nor an
administrative body discharging public duties. The
Union does not fall within the definition of 'State' or
an instrumentality of the State under Article 12 of
1
2003-III-LLJ
2
2025 SCC OnLine MAD 14430
3
W.P. No.47257 of 2025 & W.M.P.No.52794 of 2025
4
(2013) 2 AIR KANT R 613
5
1952 SCC OnLine SC 146
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the Constitution of India and, therefore, the
jurisdiction under Article 226 of the Constitution
cannot be invoked against it.
(b) The dispute is an 'industrial dispute' within the
meaning of Section 2(q) of the Code, 2020. The
Code, 2020 provides a statutory forum and remedy
for resolution of such disputes and, therefore, the
writ petition is not maintainable.
(c) The right to strike is a statutory right recognised
under the Industrial Disputes Act, 1947 ('Act, 1947')
as well as under the Code, 2020, and the petitioner
cannot seek to curtail such right otherwise than in
accordance with law.
9. Learned counsel for respondent No.2-Union places
reliance on the following judgments:
(i) T.C. Basappa Vs. T. Nagappa and Another6.
(ii) S. Shobha Vs. Muthoot Finance Ltd.7.
6
AIR 1954 SC 440
7
2025 SCC OnLine SC 177
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(iii) Praga Tools Corporation v. C.A. Imanual and
Others8.
(viii) Gujarat Steel Tubes Ltd. and Others v. Gujarat
Steel Tubes Mazdoor Sabha and Others9; and
(ix) B.R. Singh and Others v. Union of India10.
(x) U.P. State Bridge Corporation Ltd. and Others v.
U.P. Rajya Setu Nigam S. Karamchari Sangh11.
(xi) Chemosyn (P) Ltd. and Others v. Kerala Medical
Sales Representatives' Association12.
(xii) M/s Style (Dress Land) v. Union Territory,
Chandigarh and Another13; and
(xiii) M/s Jet Airways (India) Pvt. Ltd. v. Prashant Rao14.
DISCUSSION ON QUESTION (a):
10. The learned counsel appearing for the petitioner has
relied on the judgment of the Madras High Court in Bharat
8
AIR 1969 SC 1306
9
(1980) 2 SCC 593
10
(1989) 4 SCC 710
11
(2004) 4 SCC 268
12
1987(2) KLT 654
13
AIR 1999 SC 3678
14
W.P. No.15526/2017, High Court of Karnataka
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WP No. 8044 of 2026
Petroleum Corporation Ltd., supra. In the said proceeding
the petitioner Bharat Petroleum Corporation sought the writ of
mandamus to restrain the Union from proceeding with the
strike. The petition was filed on the premise that the intended
strike was during the pendency of the conciliation proceeding.
The Court noticing the fact that the conciliation proceedings
were pending and the strike notice violated Section 22(1)(d) of
the Act, 1947 granted the relief.
11. It is relevant to notice that Bharat Petroleum
Corporation is a Government owned Company and has the
trapping of the instrumentality of "State" or can be construed
as discharging a public service. Thus, the said judgment does
not come to the aid of the petitioner. It is also relevant to
notice that the employer in the said case came under the
definition of public utility service under Section 2(n) of the Act,
1947.
12. The petitioner also placed reliance on the judgment
of the Coordinate Bench of this Court in Indian Oil
Corporation Ltd., supra. In the said proceeding also, the
petitioner is a Government owned Company and the reasons
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assigned while distinguishing the judgment in Bharat
Petroleum, supra would also apply to the said case.
13. The petitioner has also relied on the judgment of
the Apex Court in the Workers of The Industry Colliery,
Dhanbad, supra. The said judgment arises from the order
passed by the Industrial Tribunal which confirmed the order
passed by the Regional Labour Commissioner wherein one day
strike was held to be illegal. It is relevant to notice that in the
aforementioned judgment the Apex Court was dealing with the
question of legality of the strike after the dispute went through
the adjudication mechanism provided under the Industrial
Disputes Act, 1947 and that was not a case where the validity
of the strike was questioned in a writ petition.
14. Learned counsel for the respondent-Union relied on
the judgment of the Apex Court in S. Shobha, supra. The Apex
Court has held that the question whether a writ petition is
maintainable against a body, public or private, has to be
determined with reference to the nature of the function
discharged by such body. If a body, whether public or private,
discharges a public duty, a writ petition may be entertained to
the limited extent of enforcing such public duty.
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15. Further, in paragraphs 8 and 9, the Apex Court has
summarised the principles governing the maintainability of a
writ petition against a private body as under:
"8. A body, public or private, should not be
categorized as "amenable" or "not amenable" to writ
jurisdiction. The most important and vital
consideration should be the "function" test as
regards the maintainability of a writ application. If a
public duty or public function is involved, any body,
public or private, concerned or connection with that
duty or function, and limited to that, would be
subject to judicial scrutiny under the extraordinary
writ jurisdiction of Article 226 of the Constitution of
India.
9. We may sum up thus:
(1) For issuing writ against a legal entity, it would
have to be an instrumentality or agency of a
State or should have been entrusted with such
functions as are Governmental or closely
associated therewith by being of public
importance or being fundamental to the life of
the people and hence Governmental.
(2) A writ petition under Article 226 of the
Constitution of India may be maintainable
against (i) the State Government; (ii)
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Authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a
company which is financed and owned by the
State; (vi) a private body run substantially on
State funding; (vii) a private body discharging
public duty or positive obligation of public
nature; and (viii) a person or a body under
liability to discharge any function under any
Statute, to compel it to perform such a
statutory function.
(3) Although a non-banking finance company like
the Muthoot Finance Ltd. with which we are
concerned is duty bound to follow and abide by
the guidelines provided by the Reserve Bank of
India for smooth conduct of its affairs in
carrying on its business, yet those are of
regulatory measures to keep a check and
provide guideline and not a participatory
dominance or control over the affairs of the
company.
(4) A private company carrying on banking
business as a Scheduled bank cannot be
termed as a company carrying on any public
function or public duty.
(5) Normally, mandamus is issued to a public body
or authority to compel it to perform some
public duty cast upon it by some statute or
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statutory rule. In exceptional cases a writ of
mandamus or a writ in the nature of
mandamus may issue to a private body, but
only where a public duty is cast upon such
private body by a statute or statutory rule and
only to compel such body to perform its public
duty.
(6) Merely because a statue or a rule having the
force of a statute requires a company or some
other body to do a particular thing, it does not
possess the attribute of a statutory body.
(7) If a private body is discharging a public
function and the denial of any rights is in
connection with the public duty imposed on
such body, the public law remedy can be
enforced. The duty cast on the public body
may be either statutory or otherwise and the
source of such power is immaterial but,
nevertheless, there must be the public law
element in such action.
(8) According to Halsbury's Laws of England, 3rd
Ed. Vol.30, p.682, "a public authority is a body
not necessarily a county council, municipal
corporation or other local authority which has
public statutory duties to perform, and which
perform the duties and carries out its
transactions for the benefit of the public and
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not for private profit". There cannot be any
general definition of public authority or public
action. The facts of each case decide the
point."
(Emphasis supplied)
16. Applying the aforesaid test, it is evident that
respondent No.2-Union does not qualify as a body discharging
public duty or public function. Admittedly, the Union is neither
the 'State' nor an instrumentality or agency of the State. It is
neither a statutory authority nor a body substantially funded by
the State. Nor is it a body required by statute to discharge any
public function.
17. In S. Shobha, supra, the Apex Court has further
held that, in exceptional circumstances, a writ of mandamus
may be issued against a private body where a public duty is
imposed upon such body by a statute or statutory rule. Even in
such cases, the writ would be confined to compelling the
performance of the public duty so imposed.
18. In the present case, no statutory obligation
involving the discharge of a public duty is imposed upon
respondent No.2-Union.
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19. The respondent-Union also placed reliance on the
judgment of the Apex Court in T.C. Basappa v. T. Nagappa,
supra, which dealt with the scope of a petition seeking a writ of
certiorari. In the said judgment, the Apex Court has held that a
writ of certiorari can be issued to quash a judicial or quasi-
judicial order. The decision to go on strike does not satisfy the
test laid down in the said judgment.
20. The petitioner is, indeed, complaining of violation of
the statutory provisions of the Code, 2020 governing strikes.
Such statutory obligations, however, cannot, by themselves, be
equated with a public duty or public function.
21. It is true that Trade Unions and Negotiating Unions
or Negotiating Councils are recognised under the Code, 2020.
Section 14 deals with recognition of a Negotiating Union or
constitution of a Negotiating Council. The Code also provides
for registration of Trade Unions. The employer, the Union and
the workers are undoubtedly bound by the provisions of the
Code. That, by itself, is not sufficient to invoke jurisdiction
under Article 226 of the Constitution of India. Despite its
registration and recognition, a workers' Union or Trade Unions
and Negotiating Unions or Negotiating Councils do not partake
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WP No. 8044 of 2026
the character of an instrumentality of the State. The tests laid
down in S. Shobha, supra, would therefore continue to apply
while examining the maintainability of a writ petition under
Article 226 against such a Union recognised under the Code,
2020.
22. Though, in an appropriate case, a writ may be
issued to enforce a statutory right or obligation, the question
that first requires consideration is whether a statutory remedy
is available to redress the grievance and, if so, whether
exceptional circumstances are made out for invoking the writ
jurisdiction despite the statutory remedy being available.
23. The Court is of the view that a statutory remedy is
available to the petitioner under the Code, 2020, to seek the
remedy sought in the present petition and the reasons are
discussed in question (b) as under:
DISCUSSION ON QUESTION (b):
24. The petitioner-Company contends the conciliation
proceeding is pending consideration, it can approach the
Tribunal only after the conciliation officer records a failure
report under Section 53(1) of the Code, 2020. The question,
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WP No. 8044 of 2026
therefore, is whether the Tribunal constituted under the Code,
2020 can adjudicate the controversy relating to a strike
proposed to be held during the pendency of conciliation
proceedings, when such proceedings are yet to conclude.
25. Chapter VII of the Code, 2020 provides the
machinery for resolution of industrial disputes. Section 44
provides for the constitution of Industrial Tribunals. Section 50
deals with the mechanism for adjudication of disputes of
individual workers relating to discharge, dismissal or
termination. Section 53 provides for conciliation proceedings
whenever an industrial dispute exists or is apprehended or a
notice under Section 62 has been given.
26. Section 53(1), (5) and (6) of the Code, 2020,
relevant for the present case, read as under:
"53. Conciliation and adjudication of dispute.--(1)
Where any industrial dispute exists or is apprehended or
a notice under section 62 has been given, the conciliation
officer shall, hold conciliation proceedings in such manner
as may be prescribed:
Provided that the conciliation officer shall not hold any
such proceedings relating to the industrial dispute after two
years from the date on which such industrial dispute arose.
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WP No. 8044 of 2026
(2) xxx.
(3) xxx.
(4) xxx.
(5) Notwithstanding anything contained in sub-section
(4), the conciliation officer shall send the report to the
concerned parties and the appropriate Government within
forty-five days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed
by the appropriate Government:
Provided that where a conciliation officer receives notice
under section 62, he shall send the report to the concerned
parties and to the appropriate Government within fourteen
days of the commencement of the conciliation proceedings:
Provided further that subject to the approval of the
conciliation officer, the time may be extended by such
period as may be agreed upon in writing by the concerned
parties to the dispute.
(6) Any concerned party may make application in the
prescribed form to the Tribunal in the matters not settled
by the conciliation officer under this section within ninety
days from the date on which the report under sub-section
(4) is received to the concerned party and the Tribunal
shall decide such application in the prescribed manner."
27. Under Section 53(1), where an industrial dispute
exists or is apprehended, or where a notice under Section 62
relating to a strike or lock-out has been given, the Conciliation
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Officer is required to hold conciliation proceedings. Section
53(4) requires the Conciliation Officer, where no settlement is
arrived at, to send a report to the concerned parties and the
appropriate Government containing the particulars specified
therein.
28. Section 53(5) requires the Conciliation Officer to
submit the report referred to in sub-section (4) within forty-five
days from the commencement of conciliation proceedings or
within such shorter period as may be fixed by the appropriate
Government. However, where the conciliation proceedings arise
out of a notice under Section 62 relating to a strike or lock-out,
the first proviso to Section 53(5) requires the report to be
submitted within fourteen days from the commencement of
such proceedings. The second proviso permits extension of the
said period by such period as may be agreed upon in writing by
the concerned parties, subject to the approval of the
Conciliation Officer.
29. Section 53(6) enables a concerned party, in respect
of matters not settled by the Conciliation Officer, to make an
application in the prescribed form to the Tribunal within ninety
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days from the date on which the report under sub-section (4) is
received by such party.
30. Section 62(1) of the Code, 2020 deals with the
procedure and prohibition relating to strikes in all industrial
establishments. In this respect, the scheme under the Code,
2020 is wider than Section 22 of the Act, 1947, which applied
to strikes and lock-outs only in public utility services.
31. Section 62(1)(d), relevant for the present case,
reads as under:
"62. Prohibition of strikes and lock-outs.--(1) No
person employed in an industrial establishment shall go
on strike, in breach of contract--
(a) xxx
(b) xxx
(c) xxx
(d) during the pendency of any conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings; or"
Section 63(1) of the Code, 2020 reads as under:
"63. Illegal strikes and lock-outs.--(1) A strike or
lock-out shall be illegal, if it is--
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(i) commenced or declared in contravention of section
62; or
(ii) continued in contravention of an order made under
sub-section (7) of section 42."
Thus, a strike commenced or declared in contravention of
Section 62 would be illegal.
32. In the present case, the strike notice issued is
dated 23.02.2026 and the strike was proposed to commence on
or after 09.03.2026. When the writ petition was filed on
09.03.2026, the conciliation proceedings had already
commenced and had not concluded. Though the first proviso to
Section 53(5) provides that the Conciliation Officer shall submit
the report within fourteen days from the commencement of
conciliation proceedings arising out of a notice under Section
62, the proceedings do not automatically stand concluded upon
expiry of fourteen days. Section 60 of the Code, 2020, which is
substantially similar to Section 20 of the Act, 1947, provides for
the commencement and conclusion of conciliation proceedings.
33. The settled position under Section 20 of the Act,
1947 is thatconciliation proceedings are deemed to commence
on the date on which the notice of strike or lock-out is received
by the Conciliation Officer and conclude only in the manner
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statutorily prescribed, namely, upon the signing of a settlement
where a settlement is arrived at, or upon receipt of the failure
report by the appropriate Government where no settlement is
arrived at.
34. Under Section 60 of the Code, 2020, where the
conciliation proceedings do not culminate in a settlement, the
proceedings are deemed to have concluded when the failure of
conciliation is recorded by the Conciliation Officer, unlike
Section 20(2)(b) of the Act, 1947, the conclusion of the
proceedings is not dependent upon receipt of the report by the
appropriate Government.
35. The provision contained in Section 12(6) of the Act,
1947, pescribing the period for submission of the report by the
Conciliation Officer, is comparable to Section 53(5) of the Code,
2020. The interpretation of the corresponding provision under
the Act, 1947 is well settled, and a report submitted beyond
the prescribed period does not become invalid. Consequently, if
no settlement is arrived at or the failure of conciliation is not
recorded within fourteen days, it cannot be held that the
conciliation proceedings automatically stand concluded upon
expiry of the said period. Any such interpretation would render
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the provisions of Section 60, which specifically prescribe when
conciliation proceedings are deemed to conclude, otiose.
36. Thus, conciliation proceedings would remain
pending beyond fourteen days if they have not concluded in the
manner prescribed under Section 60 of the Code, 2020.
37. In the present case, when the Union intended to
commence the strike on 09.03.2026, the proceedings before
the Conciliation Officer were still pending. Consequently, the
statutory prohibition contained in Section 62(1)(d) operates
and the strike during the pendency of conciliation proceedings
is prohibited. However, the Union is intending to go on strike
during the conciliation proceedings which is prohibited under
law and what is the remedy for the petitioner if the petitioner
intends to question the such strike during the pendency of the
conciliation proceedings.
On the jurisdiction of the Civil Court or the Tribunal to
entertain the dispute during the pendency of the
conciliation proceeding.
38. The Act, 1947 did not contain an express provision
barring the jurisdiction of the Civil Court. However, Section 97
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of the Code, 2020 expressly bars such jurisdiction. Section 97
reads as under:
"Jurisdiction of Civil Court barred.-No Civil Court shall
have jurisdiction in respect of any matter to which any
provision of this Code applies and no injunction shall be
granted by any Civil Court in respect of anything which is
done or intended to be done by or under this Code."
(emphasis supplied)
39. The language employed in Section 97 of the Code,
2020 incorporates two distinct restrictions: first, the jurisdiction
of the Civil Court is barred in respect of any matter to which
any provision of the Code applies; and second, the Civil Court is
prohibited from granting an injunction in respect of anything
done or intended to be done by or under the Code.
40. From the tenor and tone of Section 97 of the Code,
2020, it is evident that the jurisdiction of the Civil Court is
expressly excluded in respect of matters to which the
provisions of the Code apply. The petitioner, therefore, cannot
approach the Civil Court seeking an injunction in respect of the
proposed strike governed by the provisions of the Code, 2020.
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41. In the event of conciliation failing, the aggrieved
party can approach the Tribunal for adjudication of the
industrial dispute by invoking Section 53(6) of the Code, 2020.
42. In this context, it is necessary to refer to Section 44
of the Code, 2020, which provides for the constitution and
jurisdiction of Industrial Tribunals. Section 44(1) and Section
44(7), insofar as they are relevant for the present purpose,
read as under:
"44. Industrial Tribunal.--(1) The appropriate
Government may, by notification, constitute one or more
Industrial Tribunals for the adjudication of industrial
disputes and for performing such other functions as may
be assigned to them under this Code and the Tribunal so
constituted by the Central Government shall also exercise
the jurisdiction, powers and authority conferred on the
Tribunal, as defined in clause (m) of section 2 of the
Employees' Provident Funds and Miscellaneous Provisions
Act, 1952 (19 of 1952) by or under that Act.
xxxx
xxxx
xxxx
(7) The procedure of the Tribunal (including
distribution of cases in the benches of the Tribunal) shall
be such as may be prescribed, provided a bench
consisting of a Judicial Member and an Administrative
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Member shall entertain and decide the cases only relating
to--
(a) the application and interpretation of standing
order;
(b) discharge or dismissal of workmen including
reinstatement of, or grant of relief to, workmen
dismissed;
(c) illegality or otherwise of a strike or lockout;
(d) retrenchment of workmen and closure of
establishment; and
(e) Trade Union disputes,
and the remaining cases shall be entertained and decided
by the bench of the Tribunal consisting either a Judicial
Member or an Administrative Member of the Tribunal."
(emphasis supplied)
43. A reading of Section 44(1) reveals that the
Industrial Tribunal has jurisdiction to adjudicate industrial
disputes and to perform such other functions as may be
assigned to it under the Code. Significantly, Section
44(7)(c) expressly provides that the illegality or otherwise of a
strike or lock-out is a matter to be entertained and decided by
a Bench consisting of a Judicial Member and an Administrative
Member. Thus, a dispute concerning the illegality or otherwise
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of a strike or lock-out falls within the adjudicatory jurisdiction
of the Tribunal constituted under the Code, 2020.
44. It is to be noticed that the Code, 2020 marks a
significant departure from the scheme under the Act, 1947.
Under Section 10 of the Act, 1947, except in specified
categories of individual disputes, the adjudicatory process
commenced on a reference made by the appropriate
Government. An aggrieved party, except in specified cases,
could not directly approach the Labour Court or the Tribunal.
Under Section 53(6) of the Code, 2020, however, the aggrieved
party may directly approach the Tribunal, within the period
prescribed therein, in respect of matters not settled in
conciliation.
45. Section 53(6) postpones the commencement of
proceedings relating to an industrial dispute before the Tribunal
until the conciliation comes to an end. The object is to facilitate
a smooth conciliation process. If so, whether Section 53(6) can
be construed as creating an absolute exclusion of the Tribunal's
jurisdiction during the pendency of conciliation proceedings to
address a grievance relating to a statutory violation during the
pendency of such proceedings is the question.
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46. Though the decision taken to hold a strike during
conciliation proceedings, which have commenced because of a
notice issued under Section 62(1)(a) to go on strike, may also
qualify as an industrial dispute, there cannot be another
conciliation proceeding relating to the decision taken to go on
strike during the pending conciliation proceedings. Such an
interpretation does not serve any purpose. The Conciliation
Officer who is holding the proceedings triggered by a notice
under Section 62(1)(a), even if asked to hold conciliation
proceedings on the decision to hold a strike during the pending
conciliation proceedings, despite the statutory prohibition
against going on strike during such proceedings, has no
authority to restrain such a strike. That being the position, the
contention that Section 53(6) does not enable the aggrieved
party to approach the Tribunal complaining of a statutory
violation defeats the very purpose behind Sections 53 and 62 of
the Code, 2020.
47. It is necessary to notice that there are two legally
distinct issues in the case:
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(a) The legality or otherwise of the industrial dispute between
the employer and the workers, including the circumstances
which led to the strike notice.
(b) Whether the Union can call for a strike during the period in
which Section 62 expressly prohibits a strike.
48. Section 53(6) postpones adjudication of issue (a)
referred to above by the Tribunal until the conclusion of the
conciliation process. In the case of issue (b), if the matter is
taken to the Tribunal, it is not necessary for the Tribunal to
enter upon the merits of issue (a) or the merits of the strike
notified before the conciliation proceedings commenced. For
deciding the second issue, the Tribunal is only required to
ascertain whether there is a proposed or continuing strike
during the pendency of conciliation proceedings and nothing
else.
49. The question whether a party can resort to a strike
or lock-out during the period in which the Code, 2020 prohibits
such action stands on a different footing. That question arises
because of the pendency of conciliation; it may not strictly be
an industrial dispute of a nature which again calls for a fresh
invocation of Section 53(1) of the Code, 2020.
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50. Section 44 assumes significance in this context.
Section 44(1) confers jurisdiction upon the Tribunal to
adjudicate industrial disputes and to perform such other
functions as may be assigned to it under the Code. More
significantly, Section 44(7)(c) expressly places the "illegality or
otherwise of a strike or lockout" within the jurisdiction of the
Tribunal. Thus, the Code confers jurisdiction upon the Tribunal
as the specialised adjudicatory forum competent to determine
the legality of a strike or lock-out.
51. Sections 53 and 62 of the Code, 2020 have specific
purposes to serve. Section 53 aims at resolving the dispute
amicably by postponing the adjudication process. Section 62
aims at facilitating the conciliation process by ensuring that
strikes or lock-outs are prohibited during the conciliation
process until the statutory conciliation mechanism has been
exhausted.
52. If the Court is to take the view that the aggrieved
party cannot approach the Tribunal to enforce the statutory
right under Sections 62(1)(d) and 63 of the Code, 2020, then
such an interpretation would rob both provisions of their
essence and efficacy. Such an interpretation has to be avoided,
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instead the purposive and harmonious interpretation which aim
at protecting the statutory right should be preferred.
53. If Section 53(6) is construed as having totally
excluded the Tribunal's jurisdiction and as not being available
for enforcing the right under Section 62(1)(d) of the Code,
2020, it leads to an anomaly. The reason is that, on the one
hand, the Code mandates conciliation and simultaneously
prohibits a strike or lock-out during such conciliation; on the
other hand, in the event of a threatened violation, the Code
does not enable the Tribunal to intervene until the conciliation
proceedings have concluded. To put it simply, the situation
creates an unintended vacuum or legislative gap which is
required to be addressed.
54. In the situation referred to above, where the
Tribunal is empowered to address the larger issue and
provisions are made to resolve disputes, minor anomalies in the
provisions of law relating to jurisdiction should receive a
harmonious and purposive construction to achieve the object
behind the provisions of law, more so in a situation where
statutory rights are conferred.
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55. In that view of the matter, the Court is of the view
that Section 53(6) cannot be treated as a bar to adjudicating
the legality or otherwise of a strike or lock-out proposed or
existing during the pendency of conciliation proceedings. The
Tribunal, in exercise of its jurisdiction under Section 44 read
with Section 62 of the Code, 2020, without getting into the
merits of the industrial dispute or the reason for the strike
notified in terms of Section 62(1)(a), can decide the question of
the validity of the strike or lock-out during the conciliation
proceedings. Such an interpretation does not amount to
conferring jurisdiction for the first time. It is all about tracing
the jurisdiction within the scheme of the Code, 2020, without
diluting the object of Section 53(6) of the Code, 2020, which
aims at postponing the commencement of adjudication of the
industrial dispute. Such an interpretation strengthens, and does
not weaken or defeat, the conciliation process and avoids the
anomaly of an express statutory prohibition being incapable of
enforcement.
56. The limited jurisdiction to be exercised by the
Tribunal in such a situation shall be available only during the
period of prohibition contemplated under Section 62(1)(d) of
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the Code, 2020. Where the complaint concerns violation of
Section 62(1)(d), the Tribunal may pass such appropriate
orders to give effect to the prohibition during the pendency of
conciliation proceedings and for the statutory period of seven
days after their conclusion.
57. Consequently, if the conciliation proceedings
conclude while such an application is pending before the
Tribunal, any protective order passed in exercise of such limited
jurisdiction can operate only to the extent necessary to give
effect to the prohibition continuing for seven days after the
conclusion of conciliation proceedings and not beyond.
58. Otherwise, it will lead to an undesirable situation. If
a party, despite being prohibited from going on strike or
proceeding with a lock-out during the pendency of conciliation
proceedings, still resorts to such action, the aggrieved party
will be left with no remedy.
59. A specialised Industrial Tribunal, upon which the
Code expressly confers jurisdiction to adjudicate the illegality or
otherwise of strikes and lock-outs, cannot be held to be
powerless to grant appropriate relief for enforcement of the
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statutory prohibition merely because conciliation proceedings
concerning the underlying industrial dispute have not formally
concluded. Recognition of such limited jurisdiction advances the
object of maintaining industrial peace without trenching upon
the conciliation mechanism contemplated under Section 53.
60. It was contended on behalf of the petitioner that
the Tribunal under the Code, 2020 has not been constituted.
Section 104 of the Code, 2020 was amended by introducing
sub-section (1A), conferring jurisdiction on the Labour Courts
and Tribunals under the Act, 1947. In view of the amendment,
the Labour Courts and Tribunals under the Act, 1947 will have
jurisdiction to decide disputes which have arisen after the
commencement of the Code, 2020. Though there is a difference
in the Bench strength of the Industrial Tribunal under the Code,
2020 concerning some of the industrial disputes, and that of
the Labour Courts and Industrial Tribunals under the Act, 1947,
keeping in mind the legislative intent behind the amendment to
Section 104 of the Code, 2020, which is to avoid a vacuum in
the adjudication process, the Labour Court or the Industrial
Tribunal, as the case may be, under the Act, 1947 will have
jurisdiction to entertain disputes arising under the Code, 2020.
Such Labour Courts and Industrial Tribunals under the Act,
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1947 will exercise jurisdiction until the Tribunals are constituted
under the Code, 2020. Thus, the petitioner can approach the
Labour Court or the Tribunal under the Act, 1947.
CONCLUSIONS:
61. For the reasons assigned above, the questions
formulated supra are answered as follows:
Question (a):
The writ petition against respondent No.2-workers' Union to
restrain the proposed strike during the pendency of conciliation
proceeding, as a general rule is not maintainable. Such
recourse may be available in exceptional circumstances,
brought about in a given case.
Question (b):
(i) Notwithstanding the pendency of conciliation proceedings,
an aggrieved party can approach the Industrial Tribunal for
limited relief where the opposite party proposes to commence
or continue a strike or lock-out in violation of the statutory
prohibition contained in Section 62 of the Code, 2020.
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(ii) While exercising such limited jurisdiction, the Tribunal shall
confine itself to the statutory question arising under Section 62
and shall not adjudicate the merits of the proposed strike or
lock-out or the substantive industrial dispute which is the
subject matter of conciliation and grant such interim protection
incidental to the grievance raised.
(iii) The jurisdiction exercised for enforcement of Section
62(1)(d) is co-extensive with the duration of the statutory
prohibition and cannot be continued beyond the period for
which such prohibition remains operative.
62. The Court has taken note of the fact that during the
pendency of the writ petition there was a prohibitory order
restraining the respondent Union from holding the strike.
Section 62 of the Code, 2020 prescribes the time frame to go
on strike after issuance of notice. Such a time frame has come
to an end during the pendency of this petition. Thus, the time
spent in prosecuting this petition from 09.03.2026 till today is
to be excluded. The Court excludes such period keeping in mind
the law laid down in M/s Style (Dress land), supra.
ORDER
(i) The writ petition is dismissed as not maintainable.
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(ii) Liberty is reserved to the petitioner to approach the
competent Industrial Tribunal under the Industrial
Relations Code, 2020, seeking such relief as may
be available in law in respect of the alleged
violation of Section 62(1)(d), provided the statutory
prohibition under the said provision is still
operative.
(iii) If such an application is filed, the Tribunal shall
confine its adjudication to the question whether the
proposed or continuing strike is in violation of
Section 62(1)(d) of the Code, 2020 and shall not
adjudicate the merits of the strike notice or the
substantive industrial dispute which is the subject
matter of conciliation.
(iv) Any proceeding instituted before the Tribunal solely
for enforcement of the prohibition under Section
62(1)(d) shall cease to survive upon expiry of the
statutory period prescribed thereunder.
(v) Since respondent No.2-Union was restrained by an
interim order of this Court from proceeding with the
strike, the period during which the interim order
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remained in operation shall stand excluded while
reckoning the period prescribed under Section 62 of
the Code, 2020.
(vi) All contentions of the parties relating to the merits
of the substantive industrial dispute are kept open.
(vii) Pending interlocutory applications, if any, stand
disposed of accordingly.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN/CHS/GVP
CT:VN
