C.W.P No.14488 of 1997 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P No.14488 of 1997
Date of Decision: 03.08.2009
Shree Krishna Paper Mill and Industries Limited, Bahadurgarh, T-4,
Industrial Area, Bahadurgarh (Haryana) .....Petitioner
Versus
Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and
others .....Respondents
Present: Mr. P.K. Mutneja, Advocate
for the petitioner.
Mr. S.S. Dalal, Advocate
for respondents.
2. C.O.C.P. No.223 of 2003
Om Parkash ........Petitioner
Versus
Shri A.K. Sharma ....Respondent
Present: Mr. S.S. Dalal, Advocate
for the petitioner.
Mr. P.K. Mutneja, Advocate
for the respondent.
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
-.-
K. KANNAN J.
1. The writ petition challenges the award passed by the Labour
Court, Rohtak directing reinstatement of the workmen with 50% back
wages.
2. The matter of reference before the Labour Court was in
respect of about 18 workmen, who complained of having been
prevented from resuming duty and they had been treated as terminated
C.W.P No.14488 of 1997 -2-
from service and the question sent for adjudication was whether the
services of the workmen named in 18 individual references had been
terminated or had the workmen abandoned services by absenting
wilfully.
3. The point of dispute was that the workmen indulged in
strike between 16.01.1989 to 18.01.1989 and when they presented
themselves for resumption of work, the management insisted on
giving undertaking of good conduct, which the workmen refused and
even without any written communication specifically terminating the
services, the workmen were treated as having been terminated by
reference to the Standing Orders that willful absence for a period of
10 days beyond the leave period would be constituted as voluntary
abandonment of duty. The Labour Court found that the management
had not specifically passed any orders terminating their services but
held that undertaking required of the workmen was unjustified and
they had not been permitted to rejoin duty in spite of their willingness,
which would amount to unlawful termination. The Labour Court took
note of the circumstances under which the stand-off between the
management and the workmen took place and awarded, while
ordering reinstatement, only to 50% back wages.
4. The award of the labour Court was challenged among other
grounds that the strike itself was unjustified and illegal having been
resorted to by the workmen during the subsistence of a settlement that
had been brought about between the management and the workmen
under Section 12(3) of the Industrial Disputes Act, 1947. The further
contention was that insistence of the management to secure an
C.W.P No.14488 of 1997 -3-
undertaking from the workman could not be said to be unfair labour
practice or illegal, in view of the conduct of the workmen who had
resorted to a strike in spite of the subsistence of a settlement. They
were, therefore, justified in expecting an undertaking to be given and
the failure of the workmen to turn up for duty after such undertaking
ought not to be taken as termination of service by the management.
The result of the absence of the workmen for a period of more than 10
days following the strike, which according to the management was
illegal, entailed automatic abandonment of service in view of the
Standing Orders that provided for the names being struck off, if a
workman absented himself without taking prior sanction of leave for 8
days. Shri Mutneja, learned counsel for the Management further
argued that the Management did not actually press for such a hard
course and in fact offered at the time of conciliation proceedings to
take back all the workmen to join back but only the workmen did not
join the factory. The Labour Court’s award was also challenged as
being inconsistent in holding at one place that the management had
not passed any order of termination of service but at the same time
directing reinstatement of workmen when the finding was that they
had not been terminated.
5. Learned counsel appearing for the workmen would join
issues on the illegality of the strike as contended by the management
by stating that the settlement had been only between the Management
of Bansal Paper Mill Workers’ Union. The recitals of the settlement
as brought out on 04.03.1987 through Annexure P-1 state even in the
preamble that it was brought out only between the management of
C.W.P No.14488 of 1997 -4-
Shri Krishna Paper Mills Limited (Coating Division) and the
workmen of Bansal Paper Mill Workers’ Union. But the name Bansal
Paper Mills Workers’ Union was even admitted by the counsel for the
workmen that before the mill was taken over by Shri Krishna Paper
Mills Ltd., it carried the name of the previous company and continued
as such even after the take over. The difference in name is therefore
inconsequential. If there was a settlement that was current, then
clearly the strike was illegal. The crucial issue is whether they were
liable for termination from service on account of their participation in
the illegal strike and by their insistence that they would not give the
undertaking of good conduct for resumption of work.
6. If the strike was illegal, it was perhaps justified that the
management obtained some measure of assurance of good conduct.
This point could also be conceded in favour of the management in
order to test it by an adjudication that is still crucial whether
termination was justified. Learned counsel appearing for the
management pointed out in the course of his argument that it was not
merely a case of the workman participating in an illegal strike but also
their deliberate abstention inspite of clear offer by the management to
take them back. He would urge that even when a demand notice had
been issued by the workman after the strike period in the proceedings
before the Conciliation Officer, the management had not relied on the
provisions of the Standing Order that provided for automatic
termination of service after the expiry of the leave period, they were
willing to offer employment to all the persons who had participated in
the strike. Even out of nearly 23 persons, who had not joined and
C.W.P No.14488 of 1997 -5-
issued demand notices, 5 of them had rejoined service but only 18 of
them were still persisting without accepting the offer of the
management and went to trial before the Labour Court.
9. The Labour Court in its award has reported that it had
examined all the records and found that the Labour Inspector had
visited the premises during the conciliation to ascertain at the gate
whether the workmen were deliberately not allowed to join duty in
spite of the offer by the management to take them back. He had
observed that the offer of the workmen to rejoin duty was accepted by
the management but they also insisted on undertaking which
undertaking the workmen were not prepared to give and therefore,
they were not able to rejoin duty. Learned counsel referred to the
decision of the Hon’ble Supreme Court in Bank of India Vs. T.S.
Kelawala and others (1990) 4 SCC 744 that held the deliberate
abstention from work through strike or go slow or any other method
legitimate or illegitimate, resulting in no work for the whole day or
days or part of the days will entitle the management to deduct pro rata
or otherwise wages of the participating workmen and it will not
require any special disciplinary proceedings before making
deductions. The several other decisions, which the learned counsel
refers to are still decisions where the continuance of illegal strike had
been found to justify the denial of wages during the strike period but
none supports the contention that the management is entitled to insist
on any specific undertaking from them and if that undertaking is not
given, the workmen could be prevented from resuming duty.
Syndicate Bank Vs. General Secretary, Syndicate Bank Staff
C.W.P No.14488 of 1997 -6-
Association and another (2000) 5 SCC 65 is authority for the
proposition that rules of natural justice would be read into the
Standing Orders even though they may have contractual basis and
have statutory force. The Hon’ble Supreme Court was dealing with a
case of Bank employee unauthorizedly absenting himself from work
for the period exceeding the prescribed limit of 90 days. The notice
had been issued to the workman in that case directing him to rejoin
but the notice had come with an endorsement that it was refused. In
such case the Court held that the termination of service without
holding any departmental enquiry was not violative of principles of
natural justice and further found that the Bank had rightly treated the
employee to have voluntarily retired from service. The case at hand
does not obtain to such a situation of a refusal to join duty despite the
unequivocal willingness of the management to take him back without
any conditionality. Maharashtra Labour Union Vs. Pride Hotels Pvt.
Ltd. and another 2003-IV-LLJ (Suppl) 285 was a decision of the
Bombay High Court where the Court had held that an employee can
ask for written undertaking for good behaviour and such a demand
was not illegal. It was not a case where the workmen had been
terminated from service on account of unwillingness of the workers to
rejoin duty. The Court was considering the effect of such an
undertaking and held that such a demand for undertaking did not
amount to unfair labour practice. In T.K. Rangarajan Vs.
Government of Tamil Nadu and others (2003) 6 SCC 581 the
Hon’ble Supreme Court held under given circumstances of facts that
the strike was illegal even while holding that there was no moral or
C.W.P No.14488 of 1997 -7-
equitable justification to go on strike, the Hon’ble Supreme Court had
recorded the fact of an ordinance issued by the Government offering
to gracefully reinstate most of the workmen, who had gone on strike.
The Hon’ble Supreme Court had suggested in the case that the
employees who went on strike might be reinstated in service that
found acceptance from the state with imposition of conditions of
tendering of unconditional apology and undertaking to abide by Rule
22 that the government servant will not engage himself in strike or in
incitements thereto. The Hon’ble Supreme Court made it clear to the
employees, who were reinstated in service to take care in future in
maintaining discipline as there was no question of having fundamental
legal or equitable rights to go on strike. In this case, the offer by the
management to take them back came with some conditions imposed
that the workmen should be given undertaking for good conduct while
the workmen’s refusal to join was only on the ground that the
management ought not to insist on such an undertaking. The Labour
Court itself found that the management had not issued any orders of
termination but still found that the workmen were not able to rejoin
duty. The differences were not too wide or formidable to bridge the
gap. With greater sense of purpose and pragmatism, it should have
been possible to cement their relations. In my view, it will be too
harsh to treat the situation of the workers refusing to give an
undertaking in the manner the management wanted as resulting in
abandonment of service. Abandonment, there never had been, for,
demand notices, references and the industrial adjudication took place
in quick succession where the workmen had been clamouring for
C.W.P No.14488 of 1997 -8-
reinstatement. If the workmen could not be reinstated, they have to
take a major blame on themselves and the price for it ought to be that
they shall not claim any wages for the period when they did not work
and not forfeit their jobs completely. The order of the Labour Court
directing reinstatement was, therefore, justified but the direction for
payment of back wages may not be proper and to that extent alone the
award requires to be set aside. The workmen shall be entitled to
reinstatement with continuity of wages but without back wages. The
counsel for the workmen states that all the workmen contesting the
case shall give unconditional apology and resume work. The statement
of the counsel is recorded and the workmen shall give such an
unconditional apology as demanded by the management before
claiming resumption of duty.
10. Even during the pendency of the writ petition, there had
been a direction by this Court for payment of the dues to the workmen
under Section 17-B of the Industrial Disputes Act. There had been a
further direction that arrears of pay must be paid within two months
from the date when the copy of the order was furnished. For non-
compliance of the direction of this Court, there is also an independent
petition for contempt in C.O.C.P. No.223 of 2003. From the records,
it is only seen that it remained unsatisfied. So much for the conduct of
the management. In view of the decision that I have taken affirming
the order of the Labour Court, I do not want to persist it further by
issuance any direction for contempt. The workmen are entitled to
obtain what was assured as last drawn pay upto the actual date of
reinstatement.
C.W.P No.14488 of 1997 -9-
11. Contempt petition is dismissed.
12. The writ petition is dismissed with the modification of the
award of the Labour Court to the extent indicated above. No costs.
(K. KANNAN)
JUDGE
August 03 , 2009
Pankaj*