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IN THE HIGH COURT OF BOMBAY
(HIGH COURT)
Ashok Agarwal A.S.V. Moorthy, JJ.
Maharashtra General Kamgar Union.... Petitioner.
Versus
Solid Containers Ltd., and others.... Respondents.
Letters Patent Appeal No. 42 of 1991 in Writ Petition No. 252 of 1990, decided on 23-6-1995.
Advocates appeared :
S.J. Deshmukh with N.M. Ganguli, for the petitioner.
K.K. Singhavi with CJ. Sawant with P.P. Chavan and K.K. Thakkar, for respondent No. 1.
See Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971-Section 24 (2).
Section 25 (O).
See Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971-Section 24 (2).
Section 36, Schedule I, Item 6.
See Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971-Sections 20 (2),21 & 28, Schedule II, Item 6.
Section 20 (2), 21 & 28, Schedule II, Item 6-Industrial Disputes Act, 1947 -Section 36 Schedule I, Item 6-Scope.
In case there is a recognised union it is only that union who can represent the workers and can file and prosecute complaints under the MRUT and PULP Act 1971.
The appellant, which is not a recognised union, in face of a recognised union, has no locus to file and prosecute the instant complaint looked at from any angle, it found that the impugned judgment and order passed by the Industrial Court and affirmed by a Single Judge in writ petition deserves to be affirmed.
Section 24-Notice-What is object of?
Held, as far as lock out and strikes are concerned, lock out can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The main abject of notice of 14 days before lock out or strike is to avoid possible dislocation to the employers and their workmen and give some beathing time to adjust. It is not that the law does not permit the employers to resort to lock out in the same manner as the workmen are entitled to use the weapon of strike for achieving their objects.
The contemplated notice under Section 24 firstly operates as a warning to the employees that the employer cannot make any further concession and gives an opportunity to them to reconsider their strategy by weighining the reasonableness of their claim as also their overall strength and capacity to ensure suffering involved. Secondly, such notice enables them to make necessary adjustments to face impending unemployment in the event of their determination to fight. Thirdly it also gives an opportunity to those interested in industrial peace, including the Government machinery in this behalf, to make moves for ironing out some settlement.
Section 24 (2)-Schedule II, Item 5-Evidence Act, 1872-Section 114. Industrial Disputes Act, 1947-Section 25 (b)-Appellants-in action of for countering allegations-Amount to admission.
After the application of the respondent for closure under Section 25 (0) of the Industrial Disputes Act was dismissed, several notices were issued by the respondent alleging serious misconduct on the part of the workers. Court has reproduced the gist of tome of the notices in the preceding paragraphs. After the notices, the first respondent, on the 7th of January, 1986, has issued its notice of lock-out. It has given reasons far issuing the notice of lock out. Despite the earlier notices alleging violence on the part of the workers and the notice of lock out dated 7th of January, 1986, no reply had been seat by the appellant a considerable period.
It is only on the 6th of May, 1986, which is after a long gap of four month, that a reply denying the allegation is sent. The present complaint is also belatedly filed on the 18th of June, 1986 which is beyond the period of limitation of 90 days. Notice of 26th of December, 1985 and thereafter are not notices of insignificant nature. They contain serious allegation of misconduct and violence.
These notices have gone unreplied Inaction on the part of appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice of lock-out dated 7th of January, 1986. Though the notice containing serious allegations there is no Immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an after-thought. Similar is the case in respect of the complaint, which is filed after aver five months from the date of the notice of lock-out. By way of explaining the delay, it
is stated that the lock out notices were not individually served on the workers and hence the employees did not know the reasons of the lock out.
In respect of lock out notice, which is served upon the appellant-union, the same it is alleged, was misplaced as it got mingled with some other files, On search it was found on 6th of May, 1986 and thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In court view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so calously and casually. In the circumstances, it is held that there is a drain of truth in the allegations contained in the notice.
Section 24 (4), Item 6, Schedule II.
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Rules, J 975-Rule 23-Enquiry under Section 24 (2)- Scope of
Under Rule 23 of the M.R.T.U. & P.U.L.P. Rule, 1975 the notice of lock-out is required to be given in Form J and is required to be sent by registered post. The notice is required to be accompanied by an annexure containing a statement of reasons Thus all that a Court is required to determine is as to whether the management has given the requisite notice in the prescribed form accompanied by an annexure containing the reasons for clamping a lock out.
The further inquiry which is required to be made, is whether the lock out bas or has not been commenced within the 14 days notice period. These are the parametres of the inquiry. Once it is found that the requisite notice in the prescribed form bas been given and that notice is accompanied by an annexure containing the reasons for the lock out and the lock out has not been commenced prior the notice period of 14 days, the inquiry is complete. On the aforesaid. On the aforesaid findings being given the only conclusion that follows is that the lock out is not illegal and hence no offence can be said to have been committed under Item 6 of Schedule II of the Act.
The Court, in proceedings under the Act, is, therefore, not required or in other words it is not open to the Court to go into the truth or otherwise or the justification or otherwise of the reasons which have led the management to clamp a lock out. The enquiry is beyond the scope and ambit of the relevant provisions of the Act. If a Court were to find that the lock-out is illegal, it will make a declaration to that effect. It is only after the management fails to lift the illegal lock out within a period of 48 hours that under sub-section (5) of Section 25 of lock out will be deemed
to be an illegal lock out.
It is only in such a case that provisions of Item 6 of Schedule II will come into operation. The said item provides that proposing or continuing a lock out deemed to be illegal under this Act is made an unfair labour practice on the part of employers. The aforesaid provisions, therefore does not contemplate an inquiry into the justification or otherwise of the reasons which have led to the clamping of a lock out. That does not form part of the inquiry under the M.R.T.U. & P.U.L.P. Act, 1971.
Section 24 (2), Schedule II, Item 6.
Management-When can insist on undertaking of good behaviour before allowing workers to join duty?
Held, as far as the present complaint (UIP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the lock-out. No issue regarding the undertaking has been raised in the complaint. Despite this, court propose to deal with the submissions, as even at the commencement of the hearing court had suggested to the counsel appearing for the appellant as to whether these 27 workers, even at this stage, could be persuaded to join on giving an undertaking in an amended form which would not cast any assertions on their past conduct prior to the issue of the lock-out.
ASHOK AGARWAL, J. :---(i) Is the lock-out declared by first respondent company illegal or deemed to be illegal; (ii) Is the first respondent-company justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the lock-out? and (iii) does the Appellant, which is not a recognised union, have a locus to file a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971? are the questions which are posed for our consideration in the present Letters Patent Appeal.
2. The first respondent is a limited company engaged in manufacture of containers and allied products. The present management has taken over the company some time in the year 1983. The list which has led to the filing of the present Letters Patent Appeal commenced some-time in 1985. On 24th of October, 1985 the respondent company filed an application before the Government under section 25(o) of the Industrial Disputes Act for closure. By an order passed by the Government on the 18th of December, 1985 that application came to be rejected. This was followed by certain notices being issued by the first respondent alleging violence on the part of the workers. On 26th of December, 1985 the respondent issued a notice alleging inter alia that various notices had been issued advising the workmen to maintain discipline and not to indulge in unlawful activities. The workmen have, however, not paid any heed and have continued committing acts of indiscipline and have been intensifying the same day to day. The workers are become more hostile and aggressive and have started humiliating and hurling threats openly on the personnel of the company of dire consequences without any provocation. They are also threatening to damage the companys properties. The notice has further gone on to state that on the date of the notice, workmen gheraoed Shri R.K. Barot, the Maintenance Manager and Satyapal Goel, the stores keeper. They declared that they would not lift the gherao till assurances were given to them as to when they would be paid their wages. The two officers were humiliated, insulted, intimidated and absued in most vulgar and filthy language. The officers were threatened that none of the officers of the company would be allowed to enter the factory premises . If any officer dared to come inside the factory he would have to face dire consequences. By the violent and hostile activities workers have created tension and panic in the minds of officers and all officers are afraid to come inside the factory premises. The workmen are keeping the situation on the factory premises surcharged with tension.
3. A further notice dated the 28th of December, 1985 was issued by the respondent-company alleging that the workmen have taken over the reign of the entire factory. There is no law and order inside the factory premises. They are not obeying the directions of the security personnel. Yet, a further notice dated the 31st of December, 1985 is issued alleging violent activities on the part of the workmen on the 25th and 26th December, 1985. It was further alleged that the situation in and around the factory was very tense and that the workers have determined to assault the officers whosoever came in the factory. On 31st December, 1985, some of the officers could enter into the factory premises only in the presence of police. Apprehending grave danger to life and property the Chairman of the company rushed to the factory in the presence of the police. The Chairman tried to pacify the workmen explaining them the financial crisis being faced by the company and the paucity of funds. The explanations and persuations of the Chairman, however, have gone in-vain. A further notice dated the 2nd January, 1986 containing similar allegations was also issued.
4. On the 7th of January, 1986 the respondent Company issued a notice of lock-out with effect from the 21st of Janua
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