Point of Law: The workers of factory of petitioner - company shall not cause any hindrance in smooth functioning of petitioner company and shall create an atmosphere of harmony and peace with the management of petitioner company.

JUDGMENT :

BIREN VAISHNAV, J.

1. Special Civil Application No. 15907 of 2020 has been filed by the Company Cera Sanitaryware Limited for issuing a writ of mandamus and/or any other appropriate writ, order or direction in the like nature requiring the respondent Nos. 1 to 3 to enforce the Notification dated 16.10.2020 prohibiting strike and to initiate proceedings for offences punishable under Sections 26, 27, 28, 29 and 25 (U) of the Industrial Disputes Act, 1947, against the respondent No. 4, the Gujarat Mazdoor Sabha, a Union and further direct the Union and its office bearers to call off the illegal and unjustified strike. The Gujarat Mazdoor Sabha (hereinafter referred to as “a Union”) has filed Special Civil Application No. 16326 of 2020 for a prayer to quash and set aside the same Notification dated 16.10.2020 and the amendment dated 06.11.2020 prohibiting strike under Section 10(3) of the Industrial Disputes Act, 1947 and further hold that the notification prohibiting strike is violative of the fundamental rights. The direction is also prayed for to direct the respondent-State to refer the demands raised by the Union in its letters dated 04.08.2020 and 26.08.2020 as well as to refer the term of reference that “Was there an illegal lockout and/or refusal of work by the respondent company from 29.09.2020 and whether the workmen are entitled to the wages and all other benefits till they are permitted to resume work.”

2. Facts in brief in both the petitions would indicate that it is the case of the Company, Cera Sanitaryware Limited, that the Company which is engaged in manufacturing of sanitarywares, tiles etc. has 1350 shop floor workers. Such workers were members of the Akhil Gujarat General Majdoor Sangh. A settlement was arrived at with the Union in the course of conciliation proceedings under Section 18(3) on 04.08.2017 with regard to wages and other conditions of service. The duration of the settlement was four years commencing from 01.09.2017 upto 31.08.2021. As per the terms of the settlement the management and the workmen had agreed that any dispute would be resolved through constitutional means. The settlement also included a term which clarified that the incentive payment will not be treated as wages and the management will be entitled to alter the scheme of settlement.

2.1 The case of the Company is that because of a misconception as to the modification in the insentive scheme, the workmen resorted to strike on 09.06.2020 and 10.06.2020 which was subsequently called off. On 04.08.2020, a communication was received by the Company from the Union informing them that the workmen had joined the Gujarat Mazdoor Sabha and a notice was given that the changes in the wages be withdrawn. Certain acts of misconduct resulted and the workmen resorted to sitting strike on 10.08.2020 and 11.08.2020 at the instigation by the Union. The factory then resumed work and at the instigation of the Union, the workmen resorted to strike on 28.09.2020. Several notices were issued from time to time publishing them on the notice board, in the newspapers by sending SMS’s individually to the workmen to call off the unjustified strike, to which the workmen did not respond. During the period of time, the Assistant Commissioner of Labour, Mehsana and the Government Labour Officer visited the factory on 29.09.2020, 02.10.2020, 05.10.2020 and other dates and observed that it was the workmen who were not willing to respond and report for duty and on the intervention, though it was tried to be resolved it could not be and the State Government had therefore passed an order dated 16.10.2020 while making a reference under Section 10(1) of the Industrial Disputes Act, of the disputes which led to the strike and then under Section 10(3) of the Act, prohibits strike in exercise of its power. The order was amended on 06.11.2020 and the dispute was shown to be a reason between the Company and the Union.

3. Mr. K.M. Patel, learned Senior Advocate appearing with