K.M. Thaker, J.

1. The petitioner union has taken out present petition against award dated 30.12.2004 passed by the respondent No. 2 - learned Industrial Tribunal in Reference (IT) No. 118 of 2002 whereby the learned tribunal partly allowed the reference by directing the respondent company to pay salary to the concerned workman for the period from 26.5.2002 to 31.5.2002. By the said award, the learned tribunal rejected the demand No. 2 and demand No. 3 raised by the petitioner union and referred for adjudication of the appropriate Government.

1.1 The petitioner union has challenged the award on diverse grounds and it is claimed that the learned tribunal ought to have declared that the company had declared lock-out from 26.5.2002 and the learned tribunal should have held that the workmen are entitled for wages for the period of lock-out which commenced from 26.5.2002.

2. So as to consider and appreciate the challenge raised by the petitioner union against the award impugned in present petition, it is relevant and necessary to consider the facts involved in present petition which gave rise to the dispute leading to present petition.

2.1 The petitioner union had espoused and supported the dispute concerning about 94 workmen. In view of subsequent developments, now concerned workmen are 84. The petition is also filed for and on behalf of 84 workmen.

2.2 It has emerged from the record and from the submissions by learned advocate for the petitioner and learned senior counsel for the respondent company that the concerned workmen had raised demands by submitting charter of demands. The company and the workmen/union failed to arrive at any settlement.

2.3 The company has alleged and claimed that with a view to pursuing the charter of demands/the workmen/union commenced strike w.e.f. 26.5.2002. The concerned workmen allegedly commenced and actively participated in the said strike. The company has further alleged that after the workmen commenced the strike from 26.5.2002, the company immediately displayed a notice asking the workmen to resume their duties. The company has further claimed that the said notice dated 26.5.2002 was followed by another notice which was notified on 27.5.2002 whereby the company asked the concerned workmen to submit "undertaking" (to the effect that they will regularly attend their duties and they will not harm production activity of the company) and to resume duty after submitting the said undertaking. On the next day i.e. 28.5.2002 the company again asked for the undertaking and asked the workmen to report for duty.

2.4 According to the company, until 28.5.2002 the workmen did not submit their undertaking in same terms as the company had asked for, and that therefore, the company displayed another notice dated 31.5.2002 whereby modified undertaking was notified and the workmen were asked to submit simple undertaking as notified by the company. The company claimed that again vide notice dated 1.6.2002, it had asked the workmen to submit modified simple undertaking and also asked the workmen to resume their duties. According to the company, despite such repeated intimations, the workmen did not report for duties.

2.5 The company also claimed that it had issued individual notices to the concerned workmen and demanded simple undertaking with instruction to report for duties. The company further claimed that since none of the notices yield any result, the Office of Labour Commissioner commenced and conducted the conciliation proceedings. The conciliation proceedings were conducted during the period from 5.6.2002 to 28.6.2002. During that span, the company, allegedly addressed letters dated 15.6.2002 and 18.6.2002 to the Labour Commissioner seeking order prohibiting illegal strike.

2.6 The company also alleged that the workmen continued the strike. According to the company, the strike was continued despite the fact that conciliation process had commenced and was in progress. Subsequently, the appropriate Governmen