Appeal No 91 of 1959
Appeal by special leave from the decision dated March 241958 of the Labour Court Coimbatore in R P No 35 of 1958
G B Pai and Sardar Bahadur for the appellant
M K Ramamurthi and T section Venkataraman for the respondents
March 24
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave is directed against the order passed by the Labour Court at Coimbatore directing the appellant the Management of the Kairbetta Estate Kotagiri to pay lay off compensation to its workmen the respondents for the period between July 28 1957 to September 2 1957
This order was passed on a complaint filed by the respondents before the Labour Court under section 33C2 of the  XIV of 1947 hereinafter called the Act
The material facts leading to the respondents  complaint must be set out briefly at the outset
On July 26 1957 Mr Ramakrishna Iyer the appellant s Manager was assaulted by some of the workmen of the appellant
He suffered six fractures and had to be in hospital in Coonoor and Madras for over a month
The appellant s staff working in the division known as Kelso Division was also threatened by the workmen
 As a result of these threats three members of the staff wrote to the appellant on July 27 1957 that they were afraid to go down to the lower division and it was impossible for them to work there because their lives were in danger
They added that the workers in the lower division were threatening them 373 that they would murder them if they worked in the lower division
On receiving this communication from its staff the appellant notified on the same day that the Kelso Division would be closed from that day onwards until further notice
This notice referred to the brutal assault on the Manager and to the threat held out against the field staff who were reluctant to face the risk of working in the lower division
It appears that the Kelso Division continued to be closed until September 2 1957 on which date it was opened as a result of conciliation before the labour officer when the respondents gave an assurance that there would not be any further trouble
The claim for layoff is made for the said period during which the division remained closed between July 28 to September 2 1957
Soon after the division was closed the respondents made a complaint to the Labour Court No 43 of 1957 under section 33A of the Act in which they alleged that they had been stopped from doing their work without notice or enquiry and claimed an order of reinstatement with back wages and continuity of service
At the hearing of the said complaint the appellant raised a preliminary objection that the closure in question was a lock out and that it did not amount either to an alteration of conditions of service to the prejudice of the workmen nor did it constitute discharge or punishment by dismissal or otherwise under cls
A and B of section 33 respectively and so the petition was incompetent
This preliminary objection was upheld by the Labour Court and the complaint was accordingly dismissed on November 30 1957
Thereafter the present complaint was filed by the respondents on January 31 1958 under section 33C of the Act
In this complaint it was stated that the respondents were refused work from July 28 to September 2 1957  by declaring a lock out of a division of the estate  and the claim made was that as the management for their own reasons did not choose to run the division during the said days and laid off the respondents the respondents were entitled to claim lay off compensation under section 25C of the Act
Against this complaint the appellant raised several contentions 48 374 It was urged on its behalf that the complaint was in competent under section 33C and that the Labour Court had no jurisdiction to deal with it
It was also contended that the closure of the division amounted to a look out which under the circumstances
was perfectly justified and as such the respondents were not entitled to claim any lay off compensation
The Labour Court rejected the preliminary objection as to want of jurisdiction and held that the complaint was competent under section 33C
On the merits it found in favour of the respondents and so it directed the appellant to pay to the respondents the lay off compensation for the period in question
It is this order which is challenged before us in the present appeal and the same two questions are raised before us
For the purpose of deciding this appeal we will assume that the complaint filed by the respondents under section 33C was competent and that the Labour Court could have entertained a claim for lay off compensation if the respondents were otherwise entitled to it
On that assumption the question which we propose to decide is whether the closure of the appellant s division during the relevant period which amounts to a lock out can be said to fall within the definition of lay off
We have already pointed out that in the earlier complaint by the respondents under section 33A it has been held by the Labour Court that the closures question was a lock out and as such the appellant had not contravened the provisions of section 33 of the Act
Even in the present application the respondents have admitted that the said closure is a lock out but they have added that a lock out falls within the definition of lay off and that is the basis for their claim for layoff compensation
The question which thus arises for our decision is Does a lock out fall under section 2kkk which defines a lay off  Section 2kkk defines a lay off as meaning the failure refusal or inability of an employer on account of shortage of coal power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been 375 retrenched
There is an explanation to the definition which it is unnecessary to set out
It is clear that tile lay off takes place for one or more of the reasons specified in the definition
Lay off may be due to shortage of coal or shortage of power or shortage of raw materials or accumulation of stocks or breakdown of machinery or any other reason
 Any other reason  to which the definition refers must we think be a reason which is allied or analogous to reasons already specified
It has been urged before us on behalf of the respondents that  any other reason  mentioned in the definition need not be similar to the preceding reasons but should include any other reason of whatsoever character for which lay off may have taken place and in support of this argument reliance is placed on section 25Eiii
Section 25E deals with three categories of cases where compensation is not liable to be paid to a workman even though he may have been laid off
One of these is prescribed by section 25Eiii if the laying off is due to a strike or slowing down of production on the part of workmen in another part of the establishment no compensation has to be paid
The argument is that laying off which is specified in this clause has been excepted because but for the exception it would have attracted the definition of section 2kkk and would have imposed an obligation on the employer to pay lay off compensation
That no doubt is true but we do not see how the case specified in this clause is inconsistent with the view that  any other reason  must be similar to the preceding reasons specified in the definition
If there is a strike or slowing down of production in one part of the establishment and if lay off is the consequence the reason for which lay off has taken place would undoubtedly be similar to the reasons specified in the definition
We are therefore satisfied  that the expression  any other reason  should be construed to mean reason similar or analogous to the preceding reasons specified in the definition
That is the view taken by the Allahabad High Court in J K Hosiery Factory vs Labour Appellate Tribunal of India  Anr1
1 AIR 1956 All
376 Let us now consider what a lock out means under the Act
Section 21 defines a lock out as meaning the closing of a place of employment or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by him
It may be relevant to point out that the definition of lock out contained in section 2e of the Trade Disputes Act 1929 VII of 1929 had in addition to the present definition under section 21 included an additional clause describing a lock out which provided that such closing suspension or refusal occurs in consequence of a dispute and is intended for the purpose of compelling those persons or of aiding another employer in compelling persons employed by him to accept terms or conditions of or affecting employment 
This clause has now been deleted
Even so the essential character of a lock out continues to be substantially the same
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
In the struggle between capital and labour the weapon of strike is available to labour and is often used by it so is the weapon of lock out available to the employer and can be used by him
The use of both the weapons by the respective parties must however be subject to the relevant provisions of the Act
Chapter V which deals with strikes and lock outs clearly brings out the antithesis between the two weapons and the limitations subject to which both of them must be exercised
Thus the concept of lockout is essentially different from the concept of lay off and so where the closure of business amounts to a lock out under section 21 it would be impossible to bring it within the scope of lay off under section 2kkk
As observed by the Labour Appellate Tribunal in MS Presi dency Jute Mills Co Ltd vs Presidency Jute Mills Co Employees  Union 2 in considering the essential character of a lock out its dictionary meaning may be borne in mind
According to the dictionary meaning 2 1952LAC 62
377 lock out means  a refusal by the employer to furnish work to the operatives except on conditions to be accepted by the latter collectively 
Stated broadly lay off generally occurs in a continuing business whereas a lock out is the closure of the business
In the case of a lay off owing to the reasons specified in section 2kkk the employer is unable to give employment to one or more workmen
In the case of a lock out the employer closes the business and locks out the whole body of workmen for reasons which have no relevance to causes specified in section 2kkk
Thus the nature of the two concepts is entirely different and so are their consequences
In the case of a lay off the employer may be liable to pay compensation as provided by section 25C D and E of the Act but this liability can not be invoked in the case of a lock out
The liability of the employer in cases of lock out would depend upon whether the lock out was justified and legal or not but whatever the liability the provisions applicable to the payment of lay off compensation cannot be applied to the cases of lockout
Therefore we hold that the lock out in the present case was not a lay off and as such the respondents are not entitled to claim any lay off compensation from the appellant
Incidentally we would like to add that the circumstances of this case clearly show that the lock out was fully justified
The appellant s Manager had been violently attacked and the other members of the staff working in the lower division were threatened by the respondents
In such a case if the appellant locked out his workmen no grievance can be made against its conduct by the respondents
In the result the appeal is allowed the order passed by the Labour Court is set aside and the complaint filed by the respondents under section 33C is dismissed
There would be no order as to costs
Appeal allowed


Summary:
The management by a notice terminated the services Of 39 workmen as a measure of retrenchment
The workmen went on strike which led to an industrial dispute
The Industrial Tribunal interalia held that the strike was not justified and that the management had made out of a case of necessity for retrenchment and no malafides had been established but the principle of last come first go had not been observed in selecting the personnel for retrenchment and ordered the reinstatement Of 15 out of the 39 workmen retrenched
The Appellate Tribunal confirmed the findings of the Industrial Tribunal with certain modifications by way of compensation
The management came up in appeal by special leave
Held that where a case of retrenchment is made out the employer has normally to follow the industrial rule of retrenchment last come and first go for valid reasons he may however depart from the said rule in that case he has to show by reliable evidence preferably from the recorded history of the workmen concerned showing their inefficiency unreliability or habitual irregularity and can satisfy the Tribunal that the departure from the rule was justified by sound and valid reasons otherwise the departure from the rule could be treated as being malafidc or amounting to unfair labour practice
Held further that once it was found that retrenchment was unjustified and improper it is for the Tribunal to consider to what relief the retrenched workmen will be entitled ordinarily retrenched workmen would be entitled to claim reinstatement and the fact that in the meantime the employer has engaged other workmen would not necessarily defeat the claim for reinstatement nor would the fact that protracted litigation in regard to the dispute has inevitably meant delay defeat such a claim for reinstatement
Therefore the conclusion that 15 workmen were improperly retrenched cannot be sucessfully challenged