High Court Punjab-Haryana High Court

Bata Shoe Workers’ Union (Regd.) vs Presiding Officer on 15 July, 2009

Punjab-Haryana High Court
Bata Shoe Workers’ Union (Regd.) vs Presiding Officer on 15 July, 2009
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*