JUDGMENT
Nishita, J.
1. The Petitioner was employed with C.T.R. Manufacturing Industries Ltd., the first Respondent herein, (hereinafter referred to as “the Company”) for several years. He was working in the Fabrication Department of the Company and was giving production as per norms fixed in 1984. These norms were fixed by the company and Sarva Shramik Sanghatana, a trade union representing the workers at that time. The settlement included revision of wages and other conditions of service as well as fixation of norms of production. Accordingly, the Petitioner continued to give production in the Fabrication Section where he was working as per the norms. It appears that thereafter sometime in 1985-86, the Petitioner was shifted to another Section. There was no complaint about the working of the Petitioner. Thereafter the majority of the workmen including the Petitioner discontinued their membership with Sarva Shramik Sanghatana and joined the C.T.R. Trade Union which was an internal union formed by the workmen. This Union terminated the earlier settlement and a reference was made for adjudication of general demands pertaining to wage revision, etc. it appears that during the pendency of this Reference, Sarva Shramik Sanghatana entered into a settlement in 1989 revising the wages and norms of production for the P.Q.D. Section for the first time. According to the Petitioner, the norms fixed by the 1989 settlement were too severe and he continued to give production as per the norms fixed by the 1984 settlement. It appears that because the Petitioner did not give the production levels which were fixed by the 1989 settlement, he was not permitted to report for duty by the Company Therefore, a Complaint being Complaint (ULP0 NO. 617 of 1991 was filed by the Petitioner and another workman on 3rd April 1991 under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. An application for interim relief with a supporting affidavit was also made. By an order of 9th May 1991, the industrial Court, Pune directed the Company to permit the Petitioner to resume duty. The Petitioner reported for work, but according to hi, the Company did not give him any work. On 20th June 1991, an application was made by the Company for review of the interim order. The Industrial Court accepted the case made out by the Company and by the order of 28th June 1991 reviewed the earlier interim order. The Company was permitted to take an undertaking from the Petitioner to the effect that he would carry out the work allotted to him and as done by him earlier.
2. The evidence of the Petitioner was led before the Industrial Court. According to the Petitioner, although he reported for duty as per the directions of the Industrial Court, no work was assigned to him. Although he had tendered an undertaking as directed, he was denied entry into the establishment. He had also maintained a long book of the work performed by him. It was only when the Investigating Officer appointed by the Court directed the Company to give him work that the Petitioner was allotted work. The evidence of the works manager of the Company was recorded on behalf of the Company. He has categorically stated that although the Petitioner was working in accordance with the 1984 settlement, he did not accept the 1989 settlement. He has also stated that the norms were fixed under the 1984 settlement. There is an admission from this witness that the jobs allotted to the Petitioner were on the drilling machine and shearing machine for which no norms have been fixed in the 1984 settlement as it was a new line of production. The witness has also admitted that the Petitioner was not allowed entry into the factory premises since he had not given the undertaking insisted upon by the Company.
3. It appears that although the two persons had filed the Complaint, one of them has settled the dispute and, therefore, the Petition has been filed only by the present Petitioner.
4. Mrs. Karnik, learned Advocate for the Petitioner, submits that the Petitioner was ready and willing to give the production as per the norms fixed by the 1984 settlement. It was only after he was required to work on machines which were acquired by the Company after norms were fixed by the 1984 settlement that the Petitioner faced difficulties in achieving the norms and targets set by the Company. According to the learned Advocate, the Petitioner did not have any grievance about giving the norms of production as per the 1984 settlement. She submits further that when the Company itself has stated that the Petitioner is bound by the terms of 1984 settlement, there was no question of an undertaking being sought by the Company from the Petitioner. She submits that the undertaking which was asked was not as innocuous as it seemed. In any event, submits the learned Advocate, when there was no dispute that the Petitioner was giving the production as per the 1984 settlement, there was no need for the Petitioner to be coerced to give an undertaking that he will give norms of production as fixed.
5. Mr. Bapat, learned Advocate for the Company, submits that by seeking an undertaking from the workmen that they would give normal production and they would obey the lawful orders of the superiors, the Company had not committed any unfair labour practice. He submits that the case made out in the Complaint was different from that which was sought to be argued before this Court by the Petitioner. He further submitted that the grievance made regarding communication in English was unsustainable since the Petitioner had always engaged in correspondence with the Company in English and, therefore, the contention that all communication should be in Marathi was just a bogie raised by the Petitioner in order to avoid work. He submits that despite interim orders passed by the Industrial Court directing the Petitioner to give an undertaking and to report for duty, the Petitioner having failed to comply with this order, no relief could be claimed by him in the present Writ Petition.
6. Mr. Bapat for the Company has stated that the services of the Petitioner have already been terminated soon after the Complaint was disposed of. Therefore, the question which remains today is whether the Petitioner is entitled to any wages for the period from the date he was stopped from entering the factory premises as a result of which he was not paid any wages till the date of termination of service.
7. The undertaking insisted upon by the Company is as follows:
“I, Mr. D.M. Bhingare Cl. No. 0269 working in the Permaquip Division of CTR/Poona agree to follow verbal instructions of the Supervisor regarding work allotted to me, and I shall carry out the said work. Further, I agree to abide by Clause 1 on page 7 of Agreement dated 13.4.1984, binding on me. I will give output as given earlier and by other daily rated workmen. Further, to avoid any ambiguity regarding my output, I agree to sign daily production report (DPR) maintained by the Supervisor certifying my output, prior to the end of my shift.”
This undertaking may seem innocuous but in the facts and circumstances of this case, the undertaking would mean that the Petitioner was not giving the adequate production and that he was not working as per the directions of the supervisor, prior to giving the undertaking. If the Petitioner was not giving the adequate production, it was always open for the Company to take disciplinary action against the workman. To insist upon an undertaking in such a situation is, in my opinion, illegal and amounts to an unfair labour practice. According to Mr. Bapat for the Company, an employer can always insist upon an undertaking since there is no law prohibiting the employer from seeking such an undertaking. He submits that there can be no unfair labour practice in such a case. This submission is unsustainable. There is no doubt that the Model Standing Orders which govern the working of the Respondent Company are silent as to whether the undertaking can be extracted from the employees.
8. In the case of Industrial Tubes Manufacturing Co. Ltd. v. S.R. Samant and Anr., 1981 LAB.L.C. 379, an undertaking was sought from the workman who had resorted to an illegal strike. The employer insisted upon an undertaking being given. Such action of the employer was termed as a lockout by the workmen. The Division Bench of this Court held that insistence on bond from the workmen who were on a strike would not amount to humiliation or victimization. The Division Bench has also held that insistence on such a bond does not amount to a lockout or an unfair labour practice.
9. In the present case, there was no allegation against the Petitioner that he had resorted to any indiscipline resulting in violence or a strike, gherao, go-slow, etc. An undertaking was sought only because the workman had failed to achieve the norms of production. This may amount to a misconduct for which action can be taken under the Model Standing Orders. However, by insisting upon a bond undertaking, the employer in this case has committed an unfair labour practice. This is because neither under the appointment letter, nor under the Model Standing Orders, was the Petitioner expected to furnish an undertaking. By directing the Petitioner to give such an undertaking the Company sought to incorporate a term in the contract of service, unilaterally which was impermissible. The submission that there is no prohibition on the employer insisting on such an innocuous undertaking cannot be countenanced as that would give the employer liberty to seek an undertaking at his own whims and fancies. The facts and circumstances of this case amply prove that an employer could opt for an easy way out to take action against a workman, under the guise of an undertaking, rather than taking any disciplinary action in accordance with the Model Standing Orders or rules applicable.
10. When admittedly the norms of production were not fixed in 1984 for the drilling machine and shearing machine, the Company would not have insisted upon these norms. There is no dispute that the workman was willing to give production in accordance with the 1984 settlement. Therefore, to insist upon an undertaking that he would give production as was being given by other employees and which he was achieving earlier is, in my opinion, incorrect. The production levels sought were on the basis of the 1989 settlement. These norms were fixed in the 1989 settlement without consultation with the workmen who were actually working on these machines. The Petitioner was all along working in the Fabrication Department and not on either the drilling machine or shearing machine. Therefore, to insist upon norms which were fixed in the 1989 settlement for the drilling machine and shearing machine is an unfair labour practice.
11. The Investigating Officer has also found that the workman was not given work despite ad-interim and interim orders of the Industrial Court. Therefore, the Industrial Court ought to have considered all these factors and held that the Company had committed unfair labour practice.
12. For the foregoing reasons, Writ Petition allowed. The order of the Industrial Court, Pune dated 21st October 1993 passed in Complaint (ULP) No. 617 of 1991 is set aside. The Petitioner is entitled to wages for the period from February 1991 upto the date when his services were terminated, excluding the payment received by him for the days that he was actually permitted to work during this period. Rule made absolute accordingly with no order as to costs.
13. Mr. Bapat seeks stay of this order for four weeks. Operation of this order stayed for four weeks.
14. Certified copy expedited.