JUDGMENT
S.K. Mohanty, J.
1. The petitioner union has sought a direction to the State Government in the Labour and Employment Department to make a reference to the Industrial Tribunal for adjudication as to whether the lockout declared by the management of opposite party No. 2 with effect from 6 a.m. of April 6, 1987 till April 16, 1987 was legal and justified.
2. Kanshahal Mazdoor Union (petitioner) is a registered trade union duly recognised by the management. On April 1, 1987 the management complained before the Deputy Labour Commissioner, Rourkela, about stay-in-strike and other illegal acts of the workmen from 8.20 a.m. of that day. The Deputy Labour Commissioner conducted on the spot inquiry on said date and found the complaint to be true. The situation did not improve and ultimately the management by notice dated April 5, 1987 declared lock-out as above. The Deputy Labour Commissioner upon inquiry being satisfied about the existence of an industrial dispute because of alleged adoption of a promotion formula by the management initiated conciliation proceeding on April 6, 1987 and invited the management, petitioner union and the other union Kanshahal Shramik Sangha (opposite party No. 4) for discussion. The petitioner union while denying existence of stay-in-strike declined in writing to participate in the proceedings stating further that no dispute had been raised by them nor any dispute was in existence in the industry. They, however, alleged that action of the management in declaring lock-out of the factory was illegal, unjustified and motivated.
3. In the conciliation proceeding, Kanashahal Shramik Sangha challenged the promotion formula adopted by the management. In reply the management while contending that they were following the promotion policy embodied in the long-term settlement dated September 28, 1983 with the petitioner union without any departure, asserted that the workmen illegally resorted to stay-in-strike creating an atmosphere of tension with apprehension of violent clashes between the striking and willing workmen and danger to the plant justifying declaration of lock-out.
4. The Conciliation Officer finding no prospect of arriving at an amicable settlement closed the proceeding. On a considertion of the report of the Conciliation Officer, the State Government by Annexure-3 dated April 15, 1987 referred the dispute relating to promotion policy to the Industrial Tribunal for adjudication and by Annexures 4 & 5 of even date prohibited continuance of both the strike and the lock-out. The referred dispute is pending adjudication in the Industrial Tribunal.
5. Claiming that on May 7, 1987 representation as in Annexure-6 was made by the petitioner to State Governemnt to refer the dispute relating to lock-out to the Tribunal, the present writ application has been filed for a direction to State Government to refer the said matter for adjudication.
6. Mr. Palit for the petitioner union submitted that in the written reply to the invitation from the Conciliation Officer, the petitioner union had clearly stated that the action of the management in declaring lock-out of the factory was illegal, unjust and motivated, as revealed from the failure report submitted by the Conciliation Officer and that being so, the State Government should have referred the matter as to lock-out to the Tribunal for adjudication. In support of his argument, he pressed into service the decision of the apex Court in Management of R.F. Engg. v. State of Bihar AIR 1970 Pat 295.
7. Mr. Nanda for the management on the other hand contended that the petitioner union having not raised any dispute before the management with regard to lock-out, the State Government could not in law make refernece on the same. He relied on decisions of the apex Court in Sindhu Resettlement Corporation v. Industrial Tribunal ofGujarat, (1968-I-LLJ-834) and of this Court in Orissa Industries v. Presiding Officer, Industrial Tribunal, 1976 Lab IC 285.
8. In Sindhu Resettlement Corporation (supra) the apex Court has held that if no dispute at all is raised by the employees with the management, any request sent by them to the Government will not be an industrial dispute between them and their employer and a mere demand to a Government without a dispute being raised by the workmen with their employer cannot become an industrial dispute.
9. In R.F. Engineering (supra), the apex Court has held:
“In all cases it is not necessary that the dispute must be preceded by a demand and a refusal in express terms by the parties concerned.”
To appreciate the ratio, facts before their Lordships may be stated. In December, 1967 the workmen had made a charter of demands. During pendency of the conciliation proceeding something happened on or about May 15, 1968 resulting in stoppage of work. According to the management, the workers stopped the work, while according to the workmen, the place of employment was closed and there was suspension of work followed by refusal by the employer to continue to employ the workmen. In such special facts it was held that naturally a dispute arose as to what was the reason for stoppage of the work and the reason of that stoppage of work was an industrial dispute within the meaning of the Act and that on such facts and circumstances, no further demand by the workmen was necessary to bring out existence of an industrial dispute in the matter of the alleged lock-out.
10. Both the aforesaid decisions of the apex Court were noticed by this Court in Orissa Industries v. Presiding Officer, Industrial Tribunal, 1976 Lab IC 285. This Court held that a reference under Section 10(5) would be without jurisdiction unless an industrial dispute exists between the employer and the workmen after the latter made a demand before the management. With refeence to R.F. Engineering Ltd., this Court observed that in the facts of that particular case, their Lordships said that a demand was put forward before the management on May 15, 1968 by the workmen to allow them to work and the management would not allow them to work and that such a dispute as the demand and refusal were taken to be an industrial dispute as to the alleged lock-out and no further demand in respect of that dispute was necessary.
11. On above analysis, the position of law may be stated thus. Only an industrial dispute can be referred for adjudication. In order to constitute such dipute there must be a demand by the workmen before the management and refusal by the latter. The demand may be either express or implied. The question of existence of a dispute or an apprehended one has got to be decided with regard to facts of each case. The State Government besides the materials contained in the failure report submitted by the Conciliation Officer, can consider other relevant facts which may come to its knowledge or which may be brought to its notice and on their basis it can arrive at a conclusion as to whether reference would be made or not. For exercise of such power the other relevant facts must reveal existence of an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act.
12. In the case at hand, the petitioner union has nowhere claimed to have made any demand with regard to the lock-out before the management either expressely or impliedly and that the demand was refused. They had only made a passing statement in their written reply to the invitation from the Conciliation Officer to participate in the conciliaton proceeding, with regard to lock-out. Moreover, they have specifically stated therein that “no dispute was in existence or apprehended in the industry”. No demand with regard to lock-out could be implied because of the fact that the conciliation proceeding fixed to April 6, 1987 at 3 p.m. was subsequent to the lock-out and the only demand of the participating workmen (Kanshahal Shramik Sangha) was with regard to the promotion policy and the matter relating to lock-out was not before the Conciliatin Officer in the shape of a dispute.
13. In their letter dated April 10, 1987 (An-nexure-1) addressed to the State Government, the petitioner union simply stated that the lockout was illegal and unjust and prayed for immediate action for lifting of the lock-out. In their letter dated May 7, 1987 (Annexure-6), to the State Government, the petitioner union while praying for a reference as to legality of the lockout had merely stated that the Government has not considered about the lock-out while making the reference. Consequently, therefore, it may reasonably be held that there was no material before the State Government to indicate existence of any industrial dispute relating to lockout. Prohibition of lock-out by Government in exercise of powers under Section 10(3) of the Act cannot necessarily mean existence of a dispute concerning the lock-out so as to vest jurisdiction in Governemnt to make a reference.
14. Concluding it is held that the petitioner union having not raised any dispute before the management with regard to lock-out, the State Government could not in law refer the dispute relating thereto for adjudication and the petitioner is not entitled to any direction to State Government in this case. The writ petition is thus devoid of any merit and the same is, therefore, dismised.
J.B. Patnaik
15. I agree