JUDGMENT
A.P. Shah, J.
1. These two petitions under Article 226 of the Constitution are directed against two separate orders both dated February 17, 1998 made by the Industrial Court, Mumbai in Complaint (ULP) No. 75 of 1998 and Complaint (ULP) No. 79 of 1998 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the Act.
2. The 1st respondent company is having a factory at Bhandup, Mumbai. The company is also having manufacturing units at Pune and Bangalore. The Bhandup unit of the company which is concerned in the present matter is having 660 workers out of which about 588 are in the workmen category. The respondent company by notice dated January 18, 1998 declared its intention to effect lock-out with effect from February 5, 1998. Even before the lock-out was effected the work was suspended from January 18, 1998. The recognised union i.e., the petitioner in Writ Petition No. 475 of 1998 filed a complaint being complaint (ULP) No. 75 of 1998 under items 5 and 6 of Schedule II and items 9 and 10 of Schedule IV of the Act complaining unfair labour practices on the part of the respondent company. The said complaint was presented on January 23, 1998 i.e., before the lock-out was given effect to and application for ad interim reliefs was also moved on the same day.
3. At the same time another group of employees numbering 19 alongwith the Mumbai Shramik Sangh Union petitioner No. 20 in Writ Petition No. 517 of 1998 of which they are members, filed complaint (ULP) No. 79 of 1998. These 19 employees working in the office section of the respondent company also alleged unfair labour practices on the part of the respondent company under item 6 of Schedule II and items 5, 9 and 10 of Schedule IV of the Act. They also prayed for interim reliefs. Various documents were annexed alongwith the proceedings including earlier initiated lay-off of 150 workers.
4. The grievance against the management as set out in the complaint was that the management was trying to remove the installed machinery which were in the production line, as also the dyes and materials of other parties and the same were diverted to either Bangalore or Pune or the outside contractors to carry out the manufacturing activity and thereby creating artificial shortage of work just to pressurise the workmen to avoid any settlement with the recognised union in respect of the long pending charter of demands. It was submitted that the intention of the workmen is not to obstruct or create any hindrance in the day to day work and they are interested in continuing their employment with the respondent company. It was further submitted that during the period from August 1995 till date not a single incident of assault or threats has taken place inside or outside the factory premises. The workers are ready and willing to give undertaking to the Industrial Court as well as to the management for maintaining production and discipline. It was urged that in order to avoid settlement with the workers union on various burning issues, the respondent company has adopted such attitude and pressure tactics by effecting an illegal, improper, unjustified and unwarranted lock-out.
5. On the other hand the management emphatically denied that the work was being diverted to units at Bangalore or Pune or outside Bombay. It was submitted by the management that the shifting or removal of the machineries, tools etc. belonging to customers is an integral and indeed a necessary part of the carrying on business activity of the company and if the same is obstructed or in any manner hampered, the very business of the company would come to a standstill. The company took a stand that it was constrained to declare lock-out in view of the violent attitude adopted by the workers in the past. The company contended that the lock-out has been declared after following the due procedure in accordance with law. The Industrial Court has no jurisdiction to go into the question of justifiability of the lock-out. A preliminary objection was also raised against the maintainability of the complaint filed by the individual workers being complaint (ULP) No. 79 of 1998.
6. The Industrial Court by separate orders dated February 17, 1998 in both the cases rejected the application for interim reliefs. The Industrial Court prima facie has come to the conclusion that the lock-out was legal and in such proceedings under the Act the Industrial Court is not called upon to adjudicate upon the justifiability or otherwise and accordingly rejected the application for interim reliefs.
7. Mr. Cama and Mr. Gonsalves, learned counsel for petitioners in both the writ petitions contended that merely because the lock- out may be legal by itself, it does not mean that the lock-out is justified. To deny wages the respondents would have to show that the lock-out apart from being legal is justified. It is contended that Item 9 of Schedule IV would be attracted and as such workmen would be entitled to the wages even during the period of lock- out. It is then contended that the Industrial Court even at an interim stage has jurisdiction to go into the issue and grant interim reliefs. According to the learned counsel the complaints are filed on the basis of Item No. 9 of Schedule IV and therefore there is no question of there being any constraints on the powers of the Industrial Court to go into the question of justifiability. Both the learned counsel submitted that the lock- out is sham and bogus and the management is trying to close down the undertaking under the garb of declaring the lock-out.
8. On behalf of the respondent company it is contended by Mr. Singh that the present complaints relate to the matter of lock- out and the complaints being under the provisions of the Act, the Industrial Court could not go into the question of justifiability of lock-out. It has only to see the action of lock-out under the provisions of the Act as set out in Section 24 Sub-section (2) in Chapter V of the Act. Mr. Singh also referred to Section 25 of the Act and particularly drew my attention to Item No. 6 of Schedule IV of the Act. Mr. Singh submitted that Item No. 9 would only be attracted in the event there was an agreement, settlement or award whereby the workers were entitled to be paid wages even during the pendency of lock-out. There was no such agreement, settlement or award and as such Item No. 9 would not be attracted. Mr. Singh submitted that the aggrieved union ought to have resorted to industrial adjudication. A strong reliance is placed on the judgment of this Court in the case of Maharashtra General Kamgar Union Congress v. Solid Containers Ltd. and Ors. reported in 1996-II-LLJ-959 (Bom).
9. At the outset it may be mentioned that the issue as to whether the Industrial Court could have gone into the question of justifiability of the lock-out, is considered by PANDYA, J. in a recent judgment in the case of Oswal Agro Mills Ltd. and Ors. v. Oswal Petrochemicals Employees Union and Ors. reported in 1999 I CLR 752. It was urged before the learned Judge that considering the scheme under Sections 24 and 25 of the Act all that the trial Court can do is to consider the legality of the lock-out as laid down in the case of Solid Containers (supra). It was submitted that if at all the Court finds that it is not in keeping with the statutory requirement, the company gets 48 hours time to lift the lock-out. Beyond that nothing would happen. Rejecting the submissions the learned Judge held that the company has resorted to dubious and devious means to impose its squill on the workmen and therefore it is neither a shut down nor lock-out which can certainly be gone into under Item No. 9 of Schedule IV of the said Act. The learned Judge relied upon the decision of the Division Bench of this Court in Universal Luggage Manufacturing Co. Ltd. v. General Employees Union, reported in 1993-I-LLJ-1207, and also the decision of the Supreme Court in Kairbetta Estate v. Rajmanikkam, reported in 1960-II-LLJ-275, and General Labour Union v. B. V. Chavan, reported in 1985-I-LLJ-82 (SC). The learned Judge expressly negated the argument that the Industrial Court could not have entertained the issue of justifiability while granting interim relief even by holding that there is prima facie case in this regard.
10. A reference should also be made to the decision of this Court in Modistone Employees Union v. Modistone Ltd. and Ors. reported in 1999 I CLR 356, wherein it was held that in so far as the issue of lock-out is concerned merely because the lock-out is legal does not mean that the workers are not entitled to wages or that the company is bound to refuse payment of wages. It is open for the Industrial Court to lift the veil in order to ascertain the real intention of the management. Thus, in law there is no prohibition under item No. 9 from lifting the veil and ascertaining whether the lock-out is genuine or bogus, whether it is a lock-out or closure or whether in fact it is a lock-out. The Court came to the conclusion that the lock-out declared by the management was merely a colourable or mala fide device for closure of the company and the company was directed to lift the lock-out and to pay wages of the workmen.
11. In the case of Kairbetta Estate v. Rajmanikkam, (supra) the Supreme Court has held that the lock-out being a weapon available to the employers as an antithesis to strike, it is nothing else but an attempt on the part of the employer to persuade the workers, if necessary to coercive process to see from the employer’s point of view and to accede the demand. But surely it is not an instrument to shut down or close down an industry without following the procedure under the law. The facts of this case are distressing. Originally the workmen in Bhandup unit were members of an internal union called “GKW Sankey Division Employees Union”. This internal union had entered into various settlements with the management, the last of which was valid upto December 31, 1989. A charter of demands was served on the company on February 1, 1989 but there has been no settlement or reference of the demand for adjudication. In August, 1995 almost all the workmen joined the petitioner Union. On August 21, 1995 the petitioner union submitted a fresh charter of demands. However, there has been no settlement or reference to the Industrial Court for adjudication of the said demands. A lay-off notice was issued by the Company under Section 25-M of the Industrial Disputes Act, 1947 laying off about 150 workmen with effect from May 12, 1997 but the appropriate authority refused permission to the management to implement the said lay-off. If we peruse the allegations made in the lock-out notice, it is seen that there has been in fact no physical assault by the workers on any supervisory, administrative or managerial personnel. The workers in their complaint have alleged that the lockout is nothing but an attempt to close the unit and this is supported by the fact that material was being shifted continuously from the Bhandup unit. It is also seen from the record that in the lock- out notice the management has taken a stand that the unit has become totally unviable and thus the layoff notice was issued in 1997 but the company could not get the permission from the competent authority. In their complaint the workers have averred that since August 1995 till date not a single incident of assault has taken place inside or outside the unit or the factory premises. It is alleged that to avoid settlement with the worker’s union on various issues the respondent company has adopted pressure tactics. It is then averred that they are law abiding citizens and the workers are ready and willing to give the required undertakings to the Court that the workers are ready to resume work and maintain discipline and give normal production during the working hours. Even at the time of admission of the writ petitions the union gave an undertaking to this Court which was recorded by REBELLO, J. in his order dated March 18, 1998.
12. During the pendency of the petition there have been attempts towards settlement. The management showed its willingness to lift the lock-out subject to condition including that a large number of workers should accept VRS. The workers were willing to accept the VRS and in fact they were willing to submit to any undertaking to put an end to this stalemate. Ultimately it was found that the promises made by the management were merely empty promises and were only a device to continue the lockout. The lock-out was declared on February 5, 1998. Nearly 20 months have passed since then. In the case of The Statesman Ltd. v. Their Workmen, , it was observed as under.
“But the management cannot behave unreasonably merely because the lock-out is born lawfully. If by subsequent conduct, imaginatively interpreted, the unions have shown readiness to resume work peacefully, the refusal to restart the industry is not right and the initial legitimacy of the lock-out loses its virtue by this blemished sequel. Nor can any management expect, as feelings run high, charge-sheets in criminal courts are laid against workers and they are otherwise afflicted by the pinch of unemployment, to get proof of good behaviour beyond their written word”.
In the case of Mumbai Mazdoor Sabha v. Bennet Coleman & Co. Ltd. and Ors. reported in 1980-I-LLJ-112 (Bom) this Court has observed as under at p. 115:
“The respondent Nos. 1 and 2 also claim that it is their inherent right to declare lock-out and it is not bound to adopt proceedings to declare strike as illegal or compel the few striking employees to return to work. This attitude of the employer reflects unawareness of the modern principles governing the relations of master and servant. In the changing milieu, it cannot be overlooked that industry is run not only for the benefit of employer and employees but for an unseen and uncared for third force, represented by society at large. That requires that an employer must take reasonable steps to enable smooth running of industry and only after the failure to achieve that goal, the last fatal step of lock-out should be resorted. The employer in the present case has not taken any action whatsoever against the few striking employees before giving notice of lock- out and in these circumstances the allegation of collusion cannot be said to be without foundation.”
13. In a matter of this nature the balance of convenience has to be seen from the point of view of the employer and employees, distribution of production, and more particularly the forced idleness imposed on the workmen on account of a prolonged lock- out. A mere look at the allegations made in the lock-out notice would reveal that many of the incidents referred to in the lock- out notice are of the period of 1995 and 1996. It is alleged that there were instances of workmen obstructing the shifting of material and goods. No actual instance of any violence or assault on any officer or other employee has been set out. It is then alleged that in March, 1997 the workers were called to carry out annual statutory stock taking for which they did not report except maintenance workmen. It is also alleged that threats of physical assault to some technical and professional consultants were given. No incident of any assault has been cited. It is then alleged that on April 10, 1997 a violent morcha was organised wherein abusive and inflammatory anti-management slogans were raised provoking the workmen and creating tense atmosphere. There was no assault and no violence. On December 31, 1997 it is alleged that the General Secretary called for an urgent meeting though the management was busy. The management was pressurised to hold the said meeting. The meeting started at 5.30 p.m. It is set out that the management explained to the union about the critical business conditions and low productivity level of the unit which has resulted in the unit becoming totally unviable. It is then alleged that the committee members summoned all the 2nd shift workmen by stopping their work and incited them to assemble outside the works manager’s cabin in order to pressurise the management by illegally confining all the senior managers in order to obtain immediate answers to the queries raised by them. The workers deserted their place of work without prior permission from their superiors and assembled outside the cabin of works manager. Thereafter, the workers were led to the ground floor at about 6.50 p.m. and once again assembled there. At that time the general secretary of the union addressed the workers. It is averred that the workers were instigated to get ready for confrontation with the management in full disregard and concern to discipline, safety and normal functioning of the unit. There are vague allegations of threats being administered to the executives of the management. It seems that the main bone of contention of the workers was that the company was trying to divert its work to its other units and outside Bombay. One can see that there has been no physical assault by the workers on any supervisory, administrative or management j staff.
14. I find that there is great substance in the contention of the learned counsel for the petitioners that the management is trying to close the company under the garb of lock-out. The Industrial Court proceeded merely on the issue of justification of the lock- out. It has observed in its judgment that once the formalities and compliance as per the provisions of the Act for declaring lock-out are fulfilled by the respondent company, the Industrial Court has no business is go into the nature of reasons stated for the lock-out given by the respondent company. The Industrial Court has brushed aside the plea of the workers that they are willing to give undertaking to maintain production and discipline in the day to day working of the company. The Industrial Court observed that even if the workmen of the union are asked to give any undertaking the very purpose of the respondent company would not be served. In my opinion the Industrial Court has failed to deal with the important issues raised by the workers in their complaints. There, are about 660 workers working in the Bhandup Unit of the company and more than 500 workers belong to the workers category. Mr. Cama learned counsel for the petitioner recognised union stated that the workmen would give individual undertaking to the company within two weeks stating that they would maintain production and discipline.
15. As far as petitioners in Writ Petition No. 517 of 1998 are concerned they are not members of the recognised union which has filed the Writ Petition No. 415 of 1998. No acts of obstruction or violence are alleged against them. The only reason given by the management is that it is not possible to give work to those workers or single them out as the lock-out is for the entire unit. Mr. Singh learned counsel for the company tried to contend that the complaint by individual workers is not maintainable. In my opinion the maintainability of the complaint can be decided at the time of trial. At this stage there seems to be no justification for the lock-out for those employees covered by Writ Petition No. 517of 1998.
16. In view of the foregoing discussion Writ Petition Nos. 475 of 1998 and 517 of 1998 are allowed. The impugned orders dated February 17, 1998 passed by the Industrial Court Bombay are quashed and set aside. The respondent company is directed to lift the lockout within four weeks from today and pay the wages of the workmen from March 18, 1998 i.e., date of admission of the petitions. The arrears of wages shall be paid by the respondent company in two instalments, first instalment to be paid on or before January 31, 2000 and the second on April 1, 2000.
17. Pursuant to the order dated October 15, 1998 the respondent company has deposited in this Court 15 days wages. The petitioner union is permitted to withdraw the said amount by furnishing receipts from the concerned workmen within a fortnight after withdrawal of the said amount. By the aforesaid order dated October 15, 1998 the respondent company was allowed to remove the customers, tools and components as per the list furnished by the respondent company before the Industrial Court. Mr. Cama and Mr. Gonsalves learned counsel for the petitioners undertake to this Court on behalf of the workers that the workers will not obstruct the removal of such tools and components as stated above.
18. The parties to act on the ordinary copy of this order, duly authenticated by the Court Associate.