General Labour Union Vs Knak Industries and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.1295 OF 2005
 General Labour Union (Red Flag)
 Sion-Bandra Link Road, Dharavi,
 Mumbai--400 017. : Petitioner
 V/s.
 1. Kanak Industries,
 C/o. Crompton Greaves Godown
 Madhuradas Mill Compound,
 N.M.Joshi Marg, Lower Parel,
 Mumbai--400 013.
 2. Milton Private Limited,
 Multon House, Prabhadevi,
 Mumbai--400 025.
 3. M/s.Ganesh Garments,
 Mathuradas Mill Compound, Unit
 Nos.4 and 5, N.M.Joshi Marg,
 Mumbai--400 013.
 4. M/s.Amersey Imports Ltd.,
 Ground floor, Mathuradas Mill
 Compound, N.M.Joshi Marg,
 Mumbai--400 013. : Respondents
 ...

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 Mr.N.M.Ganguli for the petitioner.

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 Mr.V.P.Vaidya for respondent no.1.

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 Mr.P.M.Palshikar for respondent no.2.

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 Mr.M.S.Topkar for respondent nos.3 & 4.

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CORAM : S.A.BOBDE, J.

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 DATE : AUGUST 06, 2008.

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ORAL JUDGEMENT:

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 1. By this petition, the petitioner Union has challenged
 the award of the Industrial Tribunal dated 19.4.2004
 declining to hold that the workmen are entitled to full
 wages for the strike period and continuity of service.

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 2. The respondent no.1 is a company which is engaged in
 the business of manufacturing ready-made garments. The
 respondent nos.3 & 4 were admittedly not parties before
 the Industrial Tribunal. The respondent no.2 was not a
 necessary party. The dispute in the present petition
 pertains to the entitlement, if any, of the workmen to
 full wages for the strike period from 17.10.1984 to
 2.3.1989. There has been a dispute between the parties in
 respect of a lock out and a strike. However, we are
 concerned only with the dispute pertaining to the strike
 period from 17.10.1984 to 2.3.1989.

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 3. On 6.5.1983, due to rivalry between the
 petitioner-Union and the recognised Union, there was

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 general indiscipline and the respondent gave a lock out

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 notice. This lock out notice was eventually upheld as
 legal. On 23.8.1984, the respondent lifted the lock out
 and directed the workmen to report for work at the
 premises of the respondent at Taloja, after signing a
 settlement with the recognised Union. Between the period
 1.9.1984 and 15.9.1984, the workmen reported for work at
 Taloja. The petitioner Union, however, filed a complaint
 for unfair labour practices for shifting the premises from
 Mumbai to Taloja in Navi Mumbai. On 1.10.1984 the
 Industrial Court rejected the application for interim
 relief. On the same date, the petitioner gave a notice of
 strike for the reasons recorded in the annexure to the
 said notice. The statement of reasons suggests that the
 petitioner gave the strike notice mainly relating to the
 transfer of the industry from Mumbai to Taloja. This was
 the subject-matter of the complaint under the MRTU & PULP
 Act. There was also another dispute pertaining to certain
 wages. In the meanwhile, the complaint against the
 shifting was itself rejected by the Industrial Court. The
 petitioner challenged that order on 5.3.1985 in Writ
 Petition No.345 of 1985 which was rejected by this Court.
 On 11.3.1985 the respondent requested the workmen to
 report for duty. On 5.4.1985 they wrote another letter to
 the workmen to resume work and indicated that in case they
 do not want to do so, to collect their dues. Out of 800

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 employees then working, almost 600 took their legal dues
 from the respondent and expressed that they did not wish
 to work. On 1.4.1987 the respondent returned the premises
 to the landlord.

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 4. After the S.L.P. filed by the petitioner was rejected
 by the Supreme Court on 2.9.1989, the petitioner-Union
 withdrew the strike on 3.9.1989. Thereafter, the
 petitioner raised the demand for wages during the strike
 period and for resumption of work. On 5.4.1989 the
 respondent wrote to the workmen stating that they had
 abandoned the services and in effect terminated their
 employment.

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 5. On the demand of the petitioner, the Government of
 Maharashtra referred the following disputes to the
 Industrial Tribunal:-

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 "a) that all the workmen Smt.Indira G.

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 Jangam & 130 other workmen -- as per list
 enclosed should be paid full wages for the
 strike period from 17.10.1984 to 2.3.1989
 immediately.

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 b) all the workmen should be allowed to
 resume duty with immediate effect and pay

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 full wages to all the workmen from 3rd
 March 1989 till they are allowed to resume
 duty with 18% interest till payment is

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 made."

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 The Tribunal has answered the issues against the
 petitioner. Hence, this petition.

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 6. Mr.Ganguli, the learned counsel for the petitioner,
 submitted that the order of the Tribunal suffers from a
 serious error inasmuch as the Tribunal has not properly
 inquired into the justification of the strike and has
 simply held that there was no justification because of
 abandonment of services. According to the learned
 counsel, the Tribunal ought to have seen whether the
 demand for the satisfaction of which the petitioner-Union
 went on strike was justified; and in fact, there was
 ample justification for going on strike.

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 7. Mr.Vaidya, the learned counsel for the respondent
 no.1, submitted that the scope of an inquiry into
 justification is liable to be restricted to the events
 leading upto the strike and not the contents of the
 demand. In these circumstances, it is necessary to

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 examine the award of the Tribunal. At the outset, it may
 be noted that strike notice was received by the

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 respondent on 2.10.1984 and it was commenced after a
 period of 14 days as prescribed by the MRTU & PULP Act
 and in that sense was legal and justified. Admittedly,
 it continued for almost a period of 52 months when it was
 withdrawn. The Tribunal has observed that the lock out
 declared by the respondent was found to be legal and the
 action of the company in shifting the factory from Rey
 Road to Taloja was also held to be legal as per the
 decision in Complaint (ULP) No.1177 of 1984.

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 8. Two issues have been mainly argued by the learned
 counsel for the petitioner. Firstly, that the call to
 strike was justified because the respondent in a mala
 fide manner had shifted the industry to Taloja and,
 secondly, that the continuation of the strike was also
 justified because, in fact, there was no shifting of the
 industry to Taloja and, therefore, the workmen could not
 have worked at the new place. It is seen from the award
 of the Tribunal that both these aspects have been
 considered and answered. It can be seen from the facts
 that the petitioner gave a notice of strike on the same
 day their application for interim relief was rejected by
 the Industrial Court. It is difficult to uphold the
 justification in such cases, in view of the observations
 of the Supreme Court in Chandramalai Estatev. Workmen,
 reported in AIR 1960 SC 902, wherein the Supreme Court

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 has observed as follows:-

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 "While on the one hand it has to be

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 remembered that strike is a legitimate and
 sometimes unavoidable weapon in the hands
 of labour it is equally important to
 remember that indiscriminate and hasty use
 of this weapon should not be encouraged.
 It will not be right for labour to think
 that for any kind of demand a strike can be
 commenced with impunity without exhausting
 reasonable avenues for peaceful achievement
 of their objects. There may be cases where
 the demand is of such an urgent and serious
 nature that it would not be reasonable to
 expect labour to wait till after asking the
 Government to make a reference. In such
 cases, strike even before such a request
 has been made may well be justified."

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 The learned counsel for the respondent is correct in his
 submission that the question whether actual demands were
 valid or justified was not the subject-matter of a
 reference before the Tribunal and was, therefore, rightly
 not considered.

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 9. Coming to the question of continuing, Mr.Ganguli
 submitted that the respondent had not really shifted to
 Taloja and, in any case, had not provided any facilities
 for the workmen at the new place. The learned counsel
 relied on the report of the Chief Inspector of Factories
 dated 15.10.1984 on a visit paid by the Inspector before
 the strike notice. The petitioner further relied on the
 admission that the respondent had surrendered the
 premises on 1.4.1987. Obviously, the evidence cannot be
 considered, having regard to the entire circumstances on
 record. There seems to be no doubt that the
 respondent-company, in fact, carried on manufacturing
 process at the new place i.e. Taloja. This is apparent
 from the evidence on record of workmen who have admitted
 to be working at the new place. In addition, it is
 obvious from the certified copy of the order of this
 Court dated 5.3.1985 that the respondent gave an
 undertaking to the following effect to this Court upon
 which this Court rejected the petition:-

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 "In addition Mr.Shetye appearing for
 Respondent No.2 has given in writing that
 respondent no.2 is prepared to provide all
 facilities such as transport allowance,
 sanitary, toilet and canteen 5 1/2 hours
 day, and full wages for the day even if the

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 employees are not provided with work.

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 In view of the agreement entered into by

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 the recognised Union, I am satisfied that

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 there is no case for the workmen.

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 Petition is therefore rejected."

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 10. In this background, the report of the Chief
 Inspector of Factories cannot lead to the conclusion that
 there was no manufacturing process. It is possible that
 the contents of the report are accurate, but only
 pertain to a particular day. It must be noted that the
 report also shows that the respondent had not applied for
 registration and grant of a licence under the Factories
 Act, but that cannot lead to the inference that there was
 no manufacturing done by the respondent during that
 period.

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 11. It was next contended by Mr.Ganguli that the
 Industrial Tribunal could not have upheld the stand of
 the respondent that the workmen had abandoned their work,
 particularly since there was no inquiry held by the
 respondent regarding abandonment of services. The
 contention of the learned counsel for the petitioner is
 correct that a termination of service on the ground of

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 abandonment cannot be upheld unless the employer holds an
 inquiry. However, the context in which the Industrial
 Tribunal has observed that there was abandonment of
 service is not in the context of the validity of the
 termination of services of the workmen. It may be
 noticed that there was no issue pertaining to the
 validity of termination of the services before the
 Tribunal and the Industrial Tribunal was, therefore,
 right in observing that as a fact, the workmen had
 abandoned their services because in spite of several
 letters written by the respondent, they had refused to
 join their work. The observations have been made by the
 Industrial Tribunal in the context of whether
 continuation of the strike was justified and whether the
 workmen are entitled to wages during the strike period.

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 12. The Industrial Tribunal has in paragraph 17 of the
 award summed up its inference that the workmen continued
 on strike for a period of 52 months without justification
 and in spite of the company issuing various letters to
 the workmen to resume duties. There is insufficient
 evidence to substantiate the grievance of the workmen
 that adequate facilities were not there at the new place
 of work and that, in fact, the company carried on
 manufacture at the new place. The Industrial Tribunal
 has observed that the company was justified in closing

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 down completely since the workmen did not join in spite
 of about five letters sent to them individually and that
 in effect they abandoned the services. Accordingly, the
 Industrial Tribunal has upheld the right of the workmen
 only to legal dues till the date of termination of their
 services.

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 13. In the result, the award of the Industrial Tribunal
 does not suffer from any perversity or error of law
 apparent on the face of the record. The Writ Petition
 is, therefore, dismissed. The rule shall stand

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 discharged.

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 S.A. BOBDE, J.

General Labour Union v. Knak Industries and Anr.

Case brief

What is this about?

What did the court decide?

General Labour Union v. Knak Industries and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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