C.W.P No.7243 of 2002 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P No.7243 of 2002 (O&M)
Date of Decision: 15.07.2009
Bata Shoe Workers' Union (Regd.) .....Petitioner
Versus
Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad
Haryana and another
....Respondents
Present: Mr. I.K. Mehta, Sr. Advocate
with Mr. Ranjit Mehta, Advocate and
Mr. R.K. Dogra, Advocate
for the petitioner.
Mr. Chetan Mittal, Sr. Advocate with
Mr. Puneet Gupta, Advocate and
Mr.Vishal Garg, Advocate
for respondent No.2.
2. C.W.P. No.7932 of 2008
3. C.W.P. No.7973 of 2008
Bata India Limited ......Petitioner
Versus
The Appellate Authority and others ....Respondents
Present: Mr. Chetan Mittal, Sr. Advocate with
Mr. Puneet Gupta, Advocate and
Mr.Vishal Garg, Advocate
for the petitioner.
None for the respondent-caveator.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
-.-
C.W.P No.7243 of 2002 (O&M) -2-
K. KANNAN J.
I. Subject of reference
1. On a reference from the Government for an adjudication, the
Industrial Tribunal took up for consideration whether the strike
resorted to by workers on 24.02.1999 was justified, whether the
continuation of lockout from 25.02.1999 by the management was
justified and to what reliefs the respective parties were entitled to.
II. Circumstances leading to reference
2. The stand-off between the workers and the management of M/s
Bata India Limited arose on account of varying perceptions of what
the workmen and the management respectively made out of the non-
observance of the terms of settlement that had been brought about
through a memorandum dated 30.04.1998. The workmen found (i)
that the management had unjustifiably effected some deductions from
their salaries; (ii) it had closed several departments and were
transferring workmen from one department to another without any
rhyme and reason and (iii) it undermined their productivity and the
entitlement of workers to higher wages by deliberately outsourcing
some jobs from out of the factory. The workers, through a letter dated
08.01.1999, warned the management of direct action by resort to
strike.
3. The management sought to quell the threat by responding to
them that the strike was unjustified and exhorting them to realise their
sense of responsibility and refrain from creating tensions in bilateral
relations. The workers, however, went on strike on 24.02.1999 as
previously informed through notice. The management slapped a
C.W.P No.7243 of 2002 (O&M) -3-
lockout immediately on 25.02.1999 and closed down the factory. The
entry of workers/employees to the premises of the factory had been
stopped. This according to management was in response to the illegal
strike on 24.02.1999 started by the workers from 7.30 A.M. without
any reason whatever. The workers were informed that they were not
entitled to any payment of wages for the period of strike and warned
them of imminent disciplinary action. Tripartite meeting was held
under the aegis of the Labour Commissioner, Haryana on 21.04.1999
where the representatives of the management and workmen had
participated. The workers were reported to have indicated that for the
lifting of lockout and payment of wages during the lockout period
were pre-requisite for starting a dialogue on productivity and
discpline. The management found this pre-condition to be
unreasonable. The workers were reported to be in a state of turmoil at
the lockout and the denial of wages that it entailed. There had been
notices by the management on 17.05.1999, 20.05.1999 and
24.05.1999 referring to the state of tension that was prevailing in or
around the factory and the quarters of the managerial staff. Parleys for
peaceful resolution of disputes went side by side where demands like
changing the working hours, observance of punctuality and discipline
were discussed.
4. The first positive turn of events was marked through a
communication on 08.07.1998 when the Management notified the
change of service conditions w.e.f. 28.07.1998, that altered the shift
timings from 7.15 A.M.- 4.30 P.M. to 7.45 A.M.-5.00 P.M. The
marginal change in the commencement and ending of the shift periods
C.W.P No.7243 of 2002 (O&M) -4-
was to synchronize the arrival and departure timings of passenger
trains by which many workers were said to be commuting to the
factory. There were other minor irritants which were not still solved;
namely, the alleged sabotage of a machinery by breaking of the lock
of the central panel of kneader No.1. Issues of discipline and
productivity could not be still sorted out and reports were secured also
from the Assistant Labour Commissioner. The Government declared
the lockout to be illegal but the management filed Writ Petition
No.11866 of 1999 before this Hon’ble Court challenging the direction
for withdrawal of the lockout and an interim stay was also ordered by
this Court on 05.08.1999. However, further talks progressed that
yielded to a settlement arrived at between the workers and the
management on 25.10.1999 when the lockout was lifted and the
workers resumed work. Independent action had been taken by the
workers claiming wages for the period from 19.08.1999 till
24.10.1999 when the lockout continued demanding their entitlement
to wages. The issue for adjudication before the Labour Court was,
therefore, confined to the respective contentions of the workmen and
the management regarding the legality or otherwise of the strike and
the lockout respectively and the entitlement of the workmen to wages
during the period from 24.02.1999 to 19.08.1999.
III. The Labour Court’s findings
5. Before the Labour Court the attempt of the respective parties
was to show the legality of the strike and lockout and also the
justification or otherwise of its continuation. The Labour Court found
that the strike carried on by the workers on 24.02.1999 was illegal in
C.W.P No.7243 of 2002 (O&M) -5-
view of the fact that proceedings were pending before the Conciliation
Officer but it also went on to observe that the lockout was not illegal
on account of the fact that the strike was illegal and the lockout was,
therefore, protected by the provisions of Section 23 (2) of the
Industrial Disputes Act, 1947. The Labour Court set out several
instances of alleged misconduct of the workmen that vitiated the
industrial atmosphere and found a jusitification for the continuation of
lockout. The Labour Court ultimately, therefore, found that the strike
resorted to by the workers on 24.02.1999 was illegal and unjustified
and they were not entitled to get any wages for that day and that
continuation of lockout of the management was legal and justified and
the workers were not entitled to wages for the period of lockout also
namely from 25.02.1999 to 19.08.1999 that is, the days when the
lockout was prohibited by the Government through its notification
No.45341/46 dated 19.08.1999 but which was stayed by the operation
of this Hon’ble Court in C.W.P. No.11866 of 1999.
IV. Contentions on behalf of the workmen
6. The contention on behalf of the workmen through Sh. I.K.
Mehta, Senior Counsel was that the declaration of strike as illegal was
founded on a reasoning that conciliation was in progress but the
Labour Court was in error in assuming that the conciliation that could
make illegal a strike as contemplated by the Industrial Disputes Act
was a conciliation before the Board and seven days after the
conclusion of such proceedings as per Section 23-A of the Industrial
Disputes Act. Admittedly, there was no conciliation pending before
the Board and therefore, the assumption of the Labour Court was
C.W.P No.7243 of 2002 (O&M) -6-
clearly a serious legal flaw. The strike was observed after a due notice
as required by law and therefore, the lockout that was declared the
following day on 25.02.1999 was unjustified and illegal. The denial
of wages to them was also, therefore, not tenable. As an alternative
statement, the learned Senior Counsel submitted that even if the strike
was illegal the lockout was unjustified for the labourers had
volunteered to resume work but the management prolonged the
lockout. Continuation of lockout for a one-day-strike upto 24.10.1999
was a clear case of victimisation and grossly disproportionate to the
action resorted to by the workmen. The workmen themselves had no
reason to go slow on production for an increase in production was
assured to them by the terms of settlement already entered into a
higher wage and the allegations of sabotage of a kneader machine was
not true. The reliance by the Labour Court on the report of the Deputy
Commissioner of Labour was equally unjustified and the report had
not been established by examining the Deputy Labour Commissioner.
None of his findings in the report attributing unruly conduct of the
workmen could be justified or relied upon.
7. The learned Senior Counsel relied on the decision of the
Hon’ble Supreme Court in Northern Dooars Tea Company, Ltd. Vs.
Workmen of Dem Dima Tea Estate 1964 (1) LLJ 436 that when the
workmen were willing to report for work after the expiry of the token
strike but the management refused to open the gates, the Industrial
Tribunal was justified in finding that the management in continuing
lockout had not been fair or bona fide. Under such circumstances, the
Hon’ble Supreme Court modified direction of the Industrial Tribunal
C.W.P No.7243 of 2002 (O&M) -7-
for payment of half the wages for the period between the day of expiry
of the strike and the date on which the workmen were permitted to
resume the work as a result of the settlement. In yet another decision
of the Hon’ble Supreme Court in India Marine Service (Private) Ltd.
Vs. Their Workmen 1963 I LLJ 122, the Hon’ble Supreme Court had
held that where the management directing lockout as a result of the
workmen going on strike, which was found unjustified, such lockout
though originally justified but its continuance for an unreasonably
long period was found to be a justification enough for the workmen to
claim half the wages for the period of such lockout.
V. Contentions on behalf of the management
8. In response to the contention made by the learned Senior
Counsel appearing for the petitioners, Sh. Chetan Mittal, learned
Senior Counsel appearing on behalf of the management conceded that
there was indeed no conciliation before the Board for application of
Section 23(a) of the Industrial Disputes Act but it referred to the
provision of Section 23(c) as governing the issue. Referring to the
sub-section that makes reference to a strike as being illegal when it is
during the subsistence of a settlement, the learned Senior Counsel
pointed out that three essential demands on the basis of which the
workmen resorted to strike were all fully covered under the terms of
settlement and therefore, the strike was illegal. Delineating further, he
would expound that there had been no deduction of wages but on
account of fall in production which was assured in the settlement
dated 30.04.1998, some deduction in salary had been applied as per
the terms of settlement. Adverting to the grievance of the workmen
C.W.P No.7243 of 2002 (O&M) -8-
that some departments had been closed, the learned Senior Counsel
would refer to Clause 17 of the agreement that enabled the closure of
non-viable operations and to abolish uneconomical operations or
departments. Adverting to the grievance of the workmen that the
management was deliberately outsourcing jobs to reduce the
entitlement to higher wages, the learned Senior Counsel would refer to
Clause 18 of the agreement that spelt out the need of management’s
representatives to apply flexibility in production as well as
deployment of people on the ground that changes in market
requirements and demands necessitate frequent changes in pattren of
production. Components of job technically and economically not
feasible to produce in the factory were permitted to be sourced from
outside as per Clause 17 of the agreement. According to learned
Senior Counsel, therefore, the strike which had the genesis in the
grievances had all been covered under the settlement dated
30.04.1998 which was put in operation for a period of three years that
was upto 03.05.2001 and the section 23(c) debarred the petitioners
from declaring the strike.
9. Learned Senior Counsel made elaborate references to the
vitiating atmosphere that prevailed around the factory by the conduct
of the workmen and sought to draw support from the reports of the
Deputy Labour Commissioner on 23.03.1999 and 12.07.1999. The
report detailed instances of the workmen adopting an adamant attitude
that the management should first remove the lockout without any
condition and draw full salary to the workmen and thereafter, the
Union would only talk on the pending issues. It also expatiated on
C.W.P No.7243 of 2002 (O&M) -9-
instances of alleged gherao said to have been made on 17.05.1999-
20.05.1999 at the office for two hours and when they gathered at the
residential places of the officers using filthy and abusive language.
According to him, the management had adopted every reasonable
approach to end the dispute and even when they had the benefit of
order of stay of the direction of the Government to lift the lockout,
they had still pursued diligently for bringing about an early end to the
differences and worked out a fresh memorandum on 25.10.1999 when
admittedly the lockout was lifted. According to him, even if the strike
was legal and the lockout was bad in law, it was still justified and the
denial of wages as found by the Labour Court was proper.
10. Learned Senior Counsel also pointed out that it would be wrong
to characterise the incident of 24.02.1999 alone as a day when the
strike was carried out but it was merely a continuation of the conduct
that began even earlier by reducing the number of hours of work by
persistently coming late and causing fall in production. The
temporary absence or late arrival of some workmen who were to
commence the operations on machines initially had a cascading effect
of the whole assembly line not being able to complete the work that
fell in the assembly and consequently the incident must be seen as a
continuous period of strike indulged by the workmen even prior to
24.02.1999 and causing a loss of over Rs.2 lacs per day to the
management on its inability to meet the commitments to their
consumers. Competition was already emerging in the market with new
brands vying with each other to capture place in the consumer-
oriented market.
C.W.P No.7243 of 2002 (O&M) -10-
11. The learned Senior Counsel referred to several decisions of the
Hon’ble Supreme Court and of this Court to drive home the point that
even before the complete cessation of work on any one day, even go
slow tactics adopted by workmen could qualify for the definition of
strike and if it was unjustified, the lockout declared by the
management or the denials of the wages to the workmen could not be
complained of. He referred to a decision in Workmen of Motipur
Sugar Factory (Private) Ltd. Vs. Motipur Sugar Factory (Private)
Ltd. 1965 II LLJ 162 (SC) to the effect that go slow attitude adopted
by the workmen could be a basis for taking appropriate action and
even a demand of undertaking from the workmen to maintain
discipline and failure to give such undertaking could justify the
management from taking appropriate action and a Court would be
justified in looking at the attitude of the workmen under such
circumstances. Referring to the decision of Bombay High Court
reported in Engineering Mazdoor Sabha, Bombay and others Vs. S.
Taki Belgrami and another AIR 1970 Bombay 402, learned Senior
Counsel would urge that where misdemeanour and misconduct of
workmen went to the length of endangering lives of loyal workmen
and officers of company and had the effect of heavy financial losses to
company and of destroying credit with its customers, the company
would be absolved from paying wages for period of illegal lockout,
since lockout in such case could be seem to be justified. In The
Workmen of M/s Sur Iron and Steel Co. Pvt. Ltd. Vs. M/s Sur Iron
& Steel Co. Pvt. Ltd. and aother 1971 I LLJ 570 (SC), the Hon’ble
Supreme Court had held that the strike by workmen protesting against
C.W.P No.7243 of 2002 (O&M) -11-
change in weekly off and the refusal to work would be illegal if in a
case where the management changed the weekly off from Sunday to
Saturday only on account of electricity cut effected by the State
Government. If a lockout declared under the circumstances by the
management in response to an illegal strike, was held to be justifed,
the Hon’ble Supreme Court also dealt with the situation of how the
factory was required to be closed when the Union refused to sign a
settlement at the time of lifting of lockout containing a clause in draft
settlement that some of the workmen who had been suspended during
the lockout should tender unconditional apology to the management.
The closure of the factory, under such circumstances, was also held to
be justified. The decisions relating to the instances of the
management to give undertakings were cited by the learned Senior
Counsel as an answer to the plea urged on behalf of the workmen that
undertakings sought for by the management from the workmen
assuring good conduct would not amount to any ‘unfair trade practice’.
It was the contention of learned Senior Counsel appearing for the
management that undertakings sought from workmen when their prior
incidents of miconduct could even afford a justifiction for closure of
the company, not to speak of continuous lockout or denial of wages
during such lockout instituted by the conduct of the workmen. Bank
of India Vs. T.S. Kelawala and others (1990) 4 SCC 744 was a
decision that had laid down that even in the absence of provision in
the contract of employment for deduction of wages for no work done,
management would be entitled to deduct wages taking guidance from
Payment of Wages Act or Shops and Establishment Act even if the
C.W.P No.7243 of 2002 (O&M) -12-
respective enactments did not apply. The Hon’ble Supreme Court held
that deductibility or extent of deductibility would depend on each
case. This was in response to an argument that the deductions which
were made for no work done or by following go slow tactics that
resulted a fall in production could be perfectly justified. The Hon’ble
Supreme Court also held that mere physical presence in office was not
enough. Employees must perform work for payment of wages. The
dispensation in Bank of India’s case found another definition in a
subsequent decision of the Hon’ble Supreme Court in Syndicate Bank
and another Vs. K. Umesh Nayak (1994) 5 SCC 572 that held that
strike resorted by bank employees during conciliation proceedings,
despite bank’s circular for deduction of wages, the bank would be
even justified in deducting the whole day’s wage for absence of work
for some hours only. In para 24 and 25 of the judgment, the Hon’ble
Supreme Court had held that:
“…There is, therefore, nothing in the decisions of this
Court in Churakulam Tea Estate and Crompton Greaves
cases 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 the Court has
taken the view that a strike which is illegal cannot at the
C.W.P No.7243 of 2002 (O&M) -13-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.”
H.M.T. Ltd. Vs. H.M.T. Head Office Employees’ Association and
others (1996) 11 SCC 319 was another decision of the Hon’ble
Supreme Court which held that if the strike was found justified but
illegal, wages for such period of illegal strike will not be payable.
VI. No scope for dilating point of reference
12. On the issue whether the strike dated 24.02.1999 was illegal or
justified, the attempt of learned Senior Counsel for the respondent to
dilate the reference to the conduct of the workmen in adopting a go
slow course may not be justified and the point for adjudication that
the Labour Court had framed itself referred to only the character of
the strike that was resorted to on 24.02.1999. That the workers had
been adopting a go slow course may be independently relevant while
examining the issue whether the management was justified in the
C.W.P No.7243 of 2002 (O&M) -14-
lockout or its continuance but the issue of the illegality of the strike
on 24.02.1999 itself could not be tested with reference to any other
day preceding it as constituting a strike. Further none of the decisions
referred to by learned Senior Counsel for the management referred to
go slow activity itself as constituting a strike. It may result in other
consequences, which were examined in decision of the Hon’ble
Supreme Court such as departmental action or specific charges
levelled against workmen for misconduct as was done in Workmen of
Motipur Sugar Factory case referred to supra and in the subsequent
case in Engineering Mazdoor Sabha, Bombay and others. In the
Bombay High Court case, the decision for lockout was examined in
the context of the workers’ go slow act but did not itself state that such
activity would constitute a strike.
VII. Illegality of strike cannot be tested on ground not pleaded
13. Even as regards the contention that although there was no
conciliation proceedings before the Board that could attract the bar of
Section 23(a) of the Industrial Disputes Act, the learned Senior
Counsel appearing for the respondent sought to urge that there was a
violation of Section 23 (c). The illegality of the strike had never been
urged at any point of time on such a basis and though it is only a legal
issue still it required a specific focus through a specific pleading. The
Labour Court was clearly in error in applying Section 23 (a) and
entering a finding that the strike was illegal. It would be wrong to
assume that workers were going on a strike only for matters, which
were covered wholly under the agreement. If that was so, the parties
must have been put on notice of such defence so that adequate
C.W.P No.7243 of 2002 (O&M) -15-
evidence could have been placed on behalf of workmen. In the
absence of specific plea in that regard, it would be unwise to
characterise the strike as illegal by projecting a case that the issues
regarding deduction of wages, closure of departments and outsourcing
were all fully covered by the settlement and therefore, there could not
have been a justification for the strike.
14. Learned Senior Counsel appearing for the workmen also
pointed out that there were several other issues like change of factory
hours which became necessary on account of the fact that the train
timings were such that most of the employees who would arrive at the
factory that was situate directly opposite the railway station had a
time schedule of arrival at the station near the factory beyond the time
when the factory hours started in the morning. The strike again had
the genesis not merely in the case that arose on account of fall of
production but on account of a pro-rata wage cut imposed on an
assumption that the workmen had engaged in sporadic tool down
strike on 08.12.1998. If only the defence had been specific that the
strike was illegal by application of Section 23 (c), it would have been
possible for evidence to be led on both sides of how the grievance of
the workmen for effecting reduction in wages was justified or not. In
the absence of specific pleading and want of notification for the call
after due notice, it would be impermissible to make such an inference
on a ground which was not urged before the Labour Court. Even in
the reply given by the management to a notice of strike (Annexure P-
2), the management had not referred to the delay in commencement of
work by 15 minutes and the pro-rata wage cut. There was no
C.W.P No.7243 of 2002 (O&M) -16-
reference to fall in production and there was no proof adduced that
during the relevant time, the production had fallen by any misconduct
that could be attributed to the workmen. The finding of the Labour
Court that the strike was illegal is, therefore, unjustified and the same
is set aside.
VIII. If strike was not illegal, lockout wihout notice was per se
illegal
15. If the strike was not illegal, the declaration of lockout, the
following day on 25.02.1999, was in violation of the provisions of
the Industrial Disputes Act. Admittedly, the lockout had not preceded
the statutory period of notice under section 22(2) and it was declared
on the same day when the notice was issued on 25.02.1999. To find
whether the workmen were entitled to wages during the lockout
period, it will still be relevant that the lockout was justified. It should
be remembered that the strike period cannot be understood as any
period other than 24.02.1999 and the principle of “no work no pay”
cannot apply for any period beyond 24.02.1999.
IX. Justification for illegal lockout – manner of appraisal of
evidence as made by the labour court, has it valid basis?
16. If the lockout was illegal and the workmen were not permitted
to resume work, the entitlement to wages will be tested not on “no
work no pay” rule but on the justification for the lockout. If there was
a justification, the workmen would not be entitled to wages even
though the strike was legal and the lockout was illegal. If, on the
other hand, the lockout was not merely illegal but it was also
unjustified, the entitlement to wages by the workmen shall be the
obvious corollary. The justification for the lockout as adverted to by
C.W.P No.7243 of 2002 (O&M) -17-
the management would, therefore, require a deeper consideration as it
has been dealt with under various heads by the Labour Court, such as,
sporadic strikes on various dates, late reporting for duty, change of
shift timing, leaving work place, refusal to do alternative jobs, slow
down of work, sabotage to the kneader machine, incident of assault of
Sh. Manoj Kumar Jain by a workman Lakshmi Chand on 02.02.1999
and earlier on 21.08.1998. Of the several instances, which had been
referred to test the justification of the lockout, the learned Senior
Counsel made pointed arguments to only some them which alone are
discussed hereunder.
(a) sabotage of machinery
17. On the contention that there had been a damage of the kneader
meachine done by the workmen, the observation of the Labour Court
was that the Production Manager had reported the damage to the
kneader machine to the Personnel Department and on his inspection,
he found that the electric panel of the kneader machine had been
damaged. Another witness, Sh. Vinod Kumar, Senior Manager,
Maintenance had also stated to the same effect and the Labour Court
relied on the vouchers for repairing the machine Ex.M-28, M-29 and
the account statement Ex.M-30 as proving the loss to the tune of
Rs.25,000/-. The learned Senior Counsel appearing for the workmen
pointed out even the complaint Ex.M-27 dated 24.02.1999 merely
referred to the fact that the machinery was in a state of disuse and it
had only stated that the lock of the control panel of the kneader No.3
was found broken. A non-functional machine that it was, there was
hardly a need for sabotage. The complaint again talked only about the
C.W.P No.7243 of 2002 (O&M) -18-
broken pieces of the lock and not the panel itself. Learned counsel
also referred to the bills that had been produced, referred to
24.02.1999 as a date when the challan had been made and curiously
the cash bill made a mention about the date of bill as 24.02.2000. If
the product had been purchased on the same day as on 24.02.1999, the
bill would also borne only the date of the year 1999 but M-28, the
cash bill referred the date as 24.02.2000 which excited the suspicion
regarding the incident of sabotage. The finding of sabotage made by
the Labour Court was clearly unjustified.
(b) Restrictive Trade Practice
18. As regards the contention of the restrictive practice resorted to
by workers by arriving late and falling short of achievable capacity of
the machine, the contention of the learned Senior Counsel for the
workmen was that there had been no proof at fall in the volume of
production. The learned Senior Counsel referred to the fact that they
had filed an application to produce the records relating to the finished
products of convass shoes, PT shoes, Hawai Chappal from January,
1997 to February, 1999, the strength of casual, temporary and regular
workmen from 1996 to 1999, orders received from the market or from
the customers from January 1996 to December 1999, stock of finished
goods from January 1998 to February, 1999, record or log books for
working of machine alleged to have been damaged by the workmen
on 23rd or 24th February, 1999 and the said application was actually
allowed by the Labour Court on 07.01.2000 but it was still not
produced by the management. On a specific plea that the records
were not available in the factory, the witness Sh. O.P. Gandhi (MW-9)
C.W.P No.7243 of 2002 (O&M) -19-
pointed out to the fact that there had been no actual fall in production
at any time prior to the date when the strike was declared on
24.02.1999. By adverting to the evidence of Mr. O.P. Gandhi that
finds mention even in the order of the Labour Court in the following
words: “In cross-examination, he (O.P. Gandhi) admitted as regard
that prior to 29.01.1999, the production was normal and the Saldos of
that time he had not brought and production of canvas shoes was 1500
per conveyor as per Saldos dated 03.12.1998, pertaining to particular
work and suggestion was denied that production in 12/98 was also
low”. The learned Senior Counsel for the Management sought to
contend with reference to the workshop production balance entries
pertaining to the period February 1999, the entries themselves showed
that there had been any deliberate go slow work. Shri.Mehta would
reply pointing out that they only contained entries relating to the
projected production and what was really achieved. It was always
possible that there was a shortfall from the projected figures to the
actual realisation and it would be wrong to infer that there had been
any deliberate go slow process or deliberate late coming by workmen.
Saldos contained references for reason of delay as well and it is
possible to find that the reasons for delay for some days have been
referred to “late start of machine”, “slow work” by named individuals.
There are diverse other reasons as well as found in the entries for
example ‘stop for quality’ (M-60), ‘to clean latex tanks (M-63 to M-66,
M-68 to M-71, M-73 to 76, M-78-M-81, M-83, M-84, M-88 to M-
91), ‘electric fault in chamber (M-85), ‘article change (M-67), ‘stop
for substitution (M-87). There are definitely entries in some of the
C.W.P No.7243 of 2002 (O&M) -20-
production balances that their had been slow production but that is not
the only factor that has caused any fall. There are several other
factors such as electrical fault, cleaning of some machineries etc. that
had contributed to the fall in production. If there is a deliberateness
on the part of the workmen that is attributed for the fall in production
better documentary evidence ought to have been made available by
producing the documents, which were sought for production namely
the orders that had been received and how the management was
unable to fulfill the orders resulting in a loss of Rs.2 lacs as contended
by them. Without the documentary evidence adduced, it is
inconceivable that the workers must take the whole blame for
whatever fall in production that had been occasioned.
(c) Reports of Deputy Commissioner
19. Even as regards the reports of the Deputy Commissioner which
referred to the vitiated atmosphere that was prevalent, vide Ex.M-15
and M-16, the learned Senior Counsel appearing for the petitioners
was perfectly justified in pointing out that the author of the reports
themselves was not examined in Court and the workers did not have
the benefit of cross-examining on the correctness of the statements
found in the report. Again, if these statements were true, the fact that
the Government ultimately made the reference for an adjudication
must at least be understood to keep the issue open, for, when it was
before the Labour Court parties must have joined in evidence and
given a definite evidence about the so-called misconduct including
the assault of some high officials in the management hierarchy. The
Labour Court has merely relied on the report and adverted to the
C.W.P No.7243 of 2002 (O&M) -21-
alleged assault on Sh. Manoj Kumar Jain as having been proved on
the evidence of Sh. O.P. Gandhi. Sh. Manoj Kumar Jain has also been
examined as MW-10 who said on 02.02.1999 when he was present in
the factory that he had directed Sh. Lakshmi Chand to perform work
in place of an absentee employee. He had later come to his table,
lifted the table top and threw it upon him and threw also the telephone
at him. The cross-examination had been carried out to the effect that
Lakshmi Chand himself was 58 years of age and he was weak
physically to even lift the table as alleged against him. It is true as the
learned Senior Counsel for the respondent pointed out that it was also
suggested in the cross-examination that Sh. Manoj Kumar Jain
himself had provoked him but one thing is that it does not seem
appear to have been perceived as a major incident because no action
was alleged to have been taken against Sh. Lakshmi Chand on the
alleged incident.
(d) Go slow activity of workmen, if established
20. On the contention that the workers had adopted go slow mode,
the Labour Court had referred to the statements of Sh. Mam Chand
(WW-2) and Sh. Kewal Nain Arora (WW-1) as having admitted that
there had been a slow production during the relevant time. The
learned Senior Counsel appearing for the petitioners read out in the
Court their respective statements. While they had stated in general
terms that Saldos was one of the indicators of the activity of the
workmen, they had nowhere stated that they had deliberately adopted
go slow mode as attributed to their evidence by the Labour Court.
The Labour Court also made pointed reference to Sh. Bachu Giri
C.W.P No.7243 of 2002 (O&M) -22-
(WW-5) as admitting that there was sufficient power with three
generators in operation and therefore, the fall in production could not
be attributed to any power cuts. On the contrary, I have already seen
all the entries in the production charts citing the cause for low
productivity to power cuts. The Labour Court has also referred to M-
332, M-333, M-336, M-340 and M-350 as constituting proof of the
fact that the workers had indulged in definite go slow process. I do
not mean to subject each and every document to further examination
in the light of the extensive work undertaken by the Labour Court on
its finding that there had been a go slow attitude adopted by the
workmen. Even while not upsetting finding in that regard, it is not
possible to find any definite evidence that there had been fall in
production that is attributable directly to such alleged go slow mode
adopted by the workmen. As stated already, the most vital documents
that could establish the actual fall in production and the loss that was
alleged to have been occasioned by the workmen’s attitude, the
financial statements or the difference between the higher demand and
lower supplies, have not been produced despite orders by the Labour
Court.
21. Several communications that were traded between the parties
and the persistent stand taken by the management for its inability to
lift the lockout only show that the workmen had admitted themselves
as willing to resume the work but they were only insisting that they
should be paid their wages during the period of lockout as a pre-
condition for resumption. This offer had come as early as in April
1999 and if there was a dispute regarding the entitlement to wages for
C.W.P No.7243 of 2002 (O&M) -23-
the lockout period, nothing prevented the management to lift the
lockout and take the issue regarding the payment for the period of
lockout to be taken as a point for adjudication. It is not merely the
workers who ought to raise an industrial dispute and it was also
perfectly possible for the management to press for a reference and
seek an adjudication before the Labour Court on such an issue even in
April 1999 when an occasion arose when the workers were willing to
resume the work. They were not making any other condition than
urging that they should also be paid their wages during the lockout.
That has been precisely the manner for which the dispute ultimately
got resolved through a memorandum of settlement made on
25.10.1999. It was not as if the issue had been resolved. On the other
hand, para 15 of the agreement states that the period of strike by the
section of employees prior to 25.02.1999 as well as the period of
lockout between the 25.02.1999 till the date of settlement, though
would not cause break in service for the purpose of Industrial
Disputes Act, it would be without prejudice to the proceedings before
the Hon’ble High Court as well as the Industrial Tribunal, Faridabad.
Even the agreement dated 25.10.1999 did not resolve the issue as to
the entitlement or otherwise of the workmen to claim wages during
the lockout period. There was no necessity to prolong it till
25.10.1999 for such a course. The same could have been done even
in April 1999 when the workers had offered to resume and the issue
relating to the entitlement to wages could have been kept open for an
adjudication later. If the workmen were asking for wages for what
according to them they were unduly denied, the management was
C.W.P No.7243 of 2002 (O&M) -24-
insisting equally on a fragile premise that such lifting of lockout
cannot be done without being compelled to pay wages during the said
period. If the demand of the workmen was unreasonable, the rigid
response by the management was equally untenable. Meaningful
solution to a problem is always realised by an attitude of give and
take. The person that gives, takes back from the other something; not
the whole and in full measure, for, that would mean an attitude of give
and give. If the lockout had proceeded for a one day strike, which the
workers had declared after due notice, the fault lies more on the
management than on the workmen. If the workmen have to take any
blame it should for the go slow attitude alleged to have been accepted
by the workmen in their working ways. It would be improper to place
the entire blame on the workmen to deny them the wages for the
entire period of lockout. In my view, justice would be best served if
the workmen and the management share the responsibility and accord
to them 50% of the wages for the entire period of lockout.
X. Conclusion
22. In the ultimate analysis, the finding of the Labour Court as
regards the illegality of the strike is set aside. The strike period is
taken only as on the date when it was declared on 24.02.1999 and the
reference was not for any period interior to that date as contended by
the Senior Counsel for management. Indeed the reference itself was
for an adjudication whether the strike on 24.02.1999 was illegal and
unjustified. If the strike was not illegal, the lockout was illegal for it
did not conform to the requirements of law. The justification for the
lockout did not simply exist after the workmen sought for a truce and
C.W.P No.7243 of 2002 (O&M) -25-
had expressed themselves willing to resume work even in April 1999.
The continuation of lockout till October, 1999 was not justified. The
period for which the adjudication is sought is from 25.02.1999 to
19.08.1999, the date when the State Government directed the
management to lift the lockout. The workmen would be entitled to
50% of the wages for the entire period. The award of the Labour
Court is set aside and writ petition is allowed to the above extent. No
costs.
C.W.P.Nos. 7932 & 7933/2008
23. In view of the decision that I have taken that the lockout
declared by the management was neither legal nor its continuance
justified, the inevitable corollary is that the workmen are entitled to be
granted the terminal benefits treating the period of lockout as being in
lawful service. The Controlling Authority under the Payment of
Gratuity Act, construing the Payment of Gratuity Act to be a
beneficient Act and noticing that since there is no provision under the
Act treating the period of strike or lockout to be treated as break in
service, has directed that computation of gratuity should be made
including the period of lockout to be also as period of service and has
awarded Rs.3836.85 with interest @ 8% for Sh. Suresh Pal, which is
the subject of challenge in C.W.P. No.7932 of 2008 and ordered a like
amount of Rs.3509.13 with interest @ 8% for Sh.Gobind Singh,
which is the subject of challenge in C.W.P. No.7973 of 2008. The
respective orders are confirmed for a different reason in this case, in
view of the decision that I have taken in the writ petition No.7243 of
2002. The Appellate Authority before which the orders of the
C.W.P No.7243 of 2002 (O&M) -26-
Controlling Authority were challenged had an additional reason to
reject the claim of the management that there had been a non-
compliance of the statutory requirement under the Payment of Wages
Act while preferring the appeal of having to deposit 50% of the
amount. It is urged on behalf of the petitioner before this Court that
the amounts had not been deposited at the time of preferring the
appeal due to wrong advice given by the counsel. I cannot
countenance such a contention for the management, which is
represented through lawyers and even the Appellate Authority has
referred to the fact that at the time when the matter was taken up for
arguments, he pointed out to the lapse on the part of the management
but still the defect was not rectified.
24. The respective orders passed by the Controlling Authority and
the Appellate Authority are perfectly justified and there is no scope
for interference in the writ petitions.
25. The writ petitions are dismissed. Costs assessed at Rs. 2500 in
each case against the writ petitioner in favour of the respective
contesting respondents.
(K. KANNAN)
JUDGE
July 15, 2009
Pankaj*