WP/5476/2010 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5476 OF 2010 Thomson Press Kamgar Sanghatana .. Petitioner V/s. Thomson Press (India) Ltd. & Anr. .. Respondents Ms. Jane Cox for the Petitioner. Mr. A.V. Bukhari with Mr. G.C. Pathak and Mr. Burhan V. Bukhari i/b. Mr. Pandey for the Respondents. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :20 TH JULY, 2010. PRONOUNCED ON:22 ND JULY, 2010. P.C.: 1. The petitioner is a Trade Union registered under the Trade Unions Act, 1926. It has filed the present Writ Petition against two orders passed by the Industrial Court, Thane; one on 21st June, 2010 in Complaint (ULP) No.148 of 2010 and the other on 9th July, 2010 in Complaint (ULP) No.174 of 2010, refusing to grant the Union any interim relief. For the purpose of convenience, the petitioner will be referred to as “the Union” and the respondents as “the Company”. WP/5476/2010 : 2 : 2. A few facts leading to the aforesaid Complaints are as follows : 3. The Company is a printing press having establishments in various parts of the country. It commenced its operations in the establishment at Airoli, Navi Mumbai in the year 2005. It employs more than 100 workmen in Airoli. About 160 permanent workmen formed the Union on 30th April, 2010 and registered the same under the provisions of the Trade Unions Act, 1926. The Union informed the Company about its formation by a letter dated 11th May, 2010. By the same letter, the Union called upon the Company not to move the machinery which was being used in the establishment at Airoli, out of the premises. The Union also requested the Company to meet its office bearers to discuss the grievances of the workers which were pending for long. The Company replied to this letter on 24th May 2010 demanding proof that the workmen had joined the Union. It also conceded that it was intending to shift the machinery and that the same was being WP/5476/2010 : 3 : done in the best interest of the Company. The Company also disclosed that in case the machinery was shifted, the employees would be suitably utilized either in the local Unit or at the place where the machinery was shifted. On 26th May, 2010, the Union submitted a Charter of Demands in respect of their demands for wage revision, dearness allowance etc. It appears that the Union was not called for any negotiations. A reminder was sent on 5th June, 2010. According to the Union, the Company, with a view to pressurize it to withdraw the Charter of Demands removed raw materials from the factory on 9th June, 2010. A police complaint was lodged by the Union in this regard. 4. On 1st June, 2010, the Union had filed a complaint in respect of unfair labour practices committed by the Company under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”). That complaint was registered as Complaint (ULP) No.148 WP/5476/2010 : 4 : of 2010. It was pleaded therein inter alia that the workers were made to work overtime for at least four hours each day but were not paid in accordance with law and thus an unfair labour practice had been committed by the company under Item 9 of Schedule IV. It was also contended that the Company was removing the raw materials, semi finished goods, plant and machineries from the factory premises. The Union pleaded in the complaint that the Company was victimizing the workmen for having joined the Union and for having submitted a Charter of Demands. The Union therefore sought an injunction against the Company from removing the raw materials, semi finished goods, plant and machineries from the factory premises. 5. The Union issued a notice to the Company on 9th June, 2010 disclosing its intention to commence a strike from 26th June 2010. Immediately, one of the active members of the Union was issued a letter, transferring him to the Company’s Unit at Faridabad. The Union has challenged that order of WP/5476/2010 : 5 : transfer in Complaint (ULP) No.182 of 2010 which is pending before the Industrial Court, Thane. 6. On 11th June, 2010, the Industrial Court, Thane, issued a show cause notice to the Company in the aforesaid complaint. Ad-interim relief was granted on the same day restraining the Company from removing the raw materials, plant & machinery from the factory premises. The Company responded to the demands submitted only thereafter, on 12th June 2010. Before the Industrial Court heard the application for interim relief, surprisingly it decided an application filed by the Company seeking permission to remove raw materials which, according to the Company, was required for printing annual general reports pertaining to six companies. This application was granted. 7. Ultimately the application for interim relief was heard by the Industrial Court and by an order dated 21st June, 2010, the Industrial Court rejected the application. While doing so it noted that the WP/5476/2010 : 6 : Company had given reasons for shifting a particular machine which was underutilized. It also noted that a substitute machine was intended to be installed by the Company. The Industrial Court then observed that “the complainant has not shown as to how the contract of service is adversely affected by removal of raw material and semi finished goods.” It therefore concluded that prima facie there was no unfair labour practice under Item 9. The Industrial Court then recorded a statement made on behalf of the Company that it would not retrench any of the employees or close down or shift the factory without following the due process of law. Accepting this statement, the Industrial Court refused to grant any interim relief to the Union. 8. The workers proceeded on strike after mid- night of 25th June, 2010 i.e. on 26th June, 2010. According to the Union, the Company, with the active support of police from the various police stations at Navi Mumbai, forcibly removed huge amounts of semi finished goods from the factory WP/5476/2010 : 7 : premises. There was a lathi charge on the workmen due to which many of them sustained injuries. Police complaints were filed by the Union on 20th June, 2010, in respect of the injuries sustained by the workmen. 9. The Union filed another complaint being Complaint (ULP) No.174 of 2010 before the Industrial Court, Thane on 2nd July, 2010. The complaint has been filed alleging that the Company had indulged in unfair labour practices under Items 1(a) and 4 of Schedule II and Items 2, 4, 5, 8, 9 and 10 of Schedule IV of the MRTU & PULP Act. It was pleaded that the Company intended to engage fresh hands in place of the striking workmen and therefore it had committed or was engaging in an unfair labour practice under Item 8 of Schedule IV of the MRTU & PULP Act. It was further pleaded that the Company had removed and was intending to remove raw material, plant and machinery, semi finished goods from the factory premises in order to have the work completed by other workers so as to break WP/5476/2010 : 8 : the strike called by the Union. No ad-interim relief was granted by the Industrial Court. This was in view of the undertaking given by the Advocate on behalf of the Company that it had no intention to close down the factory or to shift the factory or to retrench the workmen without following the due process of law. A reply was filed by the Company thereafter to the application for interim relief, contending that the work in the establishment is proceeding with the help of non striking workmen, supervisors, junior management staff and executives as also contract workers who had been engaged by the Company much before the strike was called. About recruitment of new workers in the establishment, the Manager (HR) of the Company who filed the affidavit in reply to the application for interim relief has averred as follows : “I say that the respondent- Company has four units/factories elsewhere in India as stated above and there is no law which WP/5476/2010 : 9 : debars the respondent-Company from engaging services of their workmen working in its other Units.” 10. The Industrial Court, Thane, by the impugned order dated 9th July, 2010, refused to grant any interim relief. It observed that the Company had given an assurance that it had no intention to either close down or shift the factory, or to retrench the workmen without following the due process of law and therefore there was no need to grant any interim relief. The Industrial Court also observed that if any interim relief was granted to the workmen, substantial loss would be suffered by the Company, as the printing orders of magazines and the annual reports would not be executed within the specified deadlines. 11. The Industrial Court then recorded the statements made by the Advocate for the Company as follows : WP/5476/2010 : 10 : “28.................................... It also need to be mentioned that learned advocate Shri. G.C. Pathak while arguing the interim relief application made a statement that the respondents are not going to close the factory nor going to retrench the employees without following due process of law and considering these facts and circumstances of this case that as the respondents are doing printing business that they are getting the raw material from outside and from customers themselves and if the respondents are restrained by an order of this Court to remove any raw material and finished goods, they are likely to suffer as they will loose their customers and also material given by customers which is required for printing the magazines and annual reports with the papers and other material supplying by the customers and ink and other material used for printing will become useless and therefore in such circumstances the prayer of the complainants to restrain the respondents from removing any raw material does not arise. 29.So far as restraining the respondents from removing any raw materials, plant and machinery, semi finished goods, tools, equipments, furnitures and fixtures from the factory premises of the respondents or from any way selling, mortgaging, alienating or creating any third party right in respect of land, WP/5476/2010 : 11 : plant and machinery is concerned, the advocate Shri. G.C. Pathak has stated that the respondents are not going to sell the factory and they will not remove the plant and machinery. Therefore, in view of this statement made before the Court, the complainants are not entitled for any reliefs. The complainants had also made a prayer to restrain the respondents from recruiting any fresh hands in place of the complainants and it has been stated across the bar by advocate Shri. G.C. Pathak that they will not recruit the fresh hands but advocate Shri. G.C. Pathak has submitted that the workers on strike, cannot restrain the respondents from bringing the workers from the other unit of theirs to comply with the orders of the customers. Advocate Shri. G.C. Pathak has stated across the bar that they were not sell land, plant and machinery and factory premises, pending the hearing of the complaint and in the circumstances considering the statements made across the bar nothing survives and I do not find any unfair labour practices proved by the complainants for grant of interim relief and therefore I pass the following order.” 12. The Complaint (ULP) No.174 of 2010 has been filed under Items 2, 4, 5, 8, 9 and 10 of Schedule IV of the MRTU & PULP Act. These are as follows: WP/5476/2010 : 12 : “2. To abolish the work of a regular nature being done by employees, and to give such work to contractors as a measure of breaking a strike. 4. To insist upon individual employees, who were on legal strike, to sign a good conduct-bond, as a pre- condition to allowing them to resume work. 5. To show favouritism or partiality to one set of workers, regardless of merits. 8. To recruit employees during a strike which is not an illegal strike. 9. Failure to implement award, settlement or agreement. 10. To indulge in act of force or violence.” 13. Before proceeding to deal with the unfair labour practices complained of, it would be necessary to bear in mind that the workmen in the present case have proceeded on a strike which has not been declared to be illegal. In fact, a notice was issued on 9th June, 2010, stating that they would proceed on strike on 25th June, 2010 and accordingly the strike has commenced from the early hours of 26th June, 2010. Prima facie, therefore, WP/5476/2010 : 13 : there is nothing to indicate that the strike declared by the workmen is illegal. 14. Why do workers resort to strike? A strike is a tool for collective bargaining which the Courts have observed should be used sparingly. As observed by Gajendragadkar J, speaking for the bench in the case of Kairbetta Estate vs. Raja Manickam, reported in 1960 (2) LLJ 275: “In a struggle between the capital and labour, the weapon of a strike is available to the labour and is often used by it, as is the weapon of lock out available to the employer and can be used by him.” A strike tests the economic bargaining power of both the labour as well as the capital. A strike or a lock out is declared by a Union or the Management, as the case may be, in order to compell the other side to see reason and accept the demands raised by it. Under s. 2(q) of the Industrial Disputes Act a strike has been defined as a cessation of work by a body of persons acting in combination or a concerted refusal of work. It would thus be futile WP/5476/2010 : 14 : and absurd to expect workmen to proceed on a strike and not cause any financial embarrassment or economic drain on the employer. In fact, that is the very purpose for proceeding on a strike, so that the employer would come to the negotiating table and acceded to the demands raised by the workmen. Similarly when a lock out is declared, the employer tests the economic strength of the workmen to survive during the period of lock out in order to ensure that the employers demands are met. Strikes and lock outs are weapons of attrition in the struggle between the workers and Management. Permitting an employer to remove raw material, semi finished goods, finished goods, machinery from the plant during a strike would only lead to frustration of the strike. The Industrial Court cannot be seen to be used as an instrument to support one party against the other during a period of a lock out or a strike unless the lock outs or strikes are declared illegal. WP/5476/2010 : 15 : 15. In the case of Sri Rama Vilas Service Ltd. and Anr. vs. Simpson and Group Companies Workers’ Union and Anr., reported in 1979 II LLJ, a learned Single Judge of the Madras High Court was dealing with Section 18 of the Trade Unions Act, 1926 and has considered whether during the period of a strike, the Court should stultify the result of such cessation of work resorted to by the workmen. The learned Single Judge has observed as follows : “7............................... If cessation of work is the result of strike, it is not possible to lend the support of this Court to stultify the result of such cessation of work resorted to by the workmen. The very effect of the strike resorted to by the workmen will be watered down if the managements, either by themselves or through their customers, are permitted to remove the goods, either manufactured by the managements or coming into the custody of the managements in the course of their trade. If the customers of the managements are to be permitted to remove the goods, by themselves, without the aid of the labour, that would tantamount to rendering the WP/5476/2010 : 16 : strike inefficacious, and to achieve that purpose, this Court should not lend its hands. It could only be a matter of conciliation between the managements and their labour. Equally so, the other reliefs asked for by the management with reference to conveyance of goods, supplies, orders and raw materials into their factory in C.S. No.362 of 1979 could make the strike now resorted to by the workmen a futile weapon. The acts complained of in the main by the managements cannot, in my opinion, be said to be violent or tortuous, so as to demolish the immunity under S. 18 of the Act and to facilitate the managements to seek the reliefs asked for in the present suits, except to the extent rightly conceded to by the learned counsel for the defendants.” 16. Similarly, in the case of Gwalior Rayons Silk Manufacturing (Weaving) Co. Ltd., Calicut and Anr. vs. District Collector, Alleppe and Ors., reported in 1982 I LLJ, a learned Single Judge of the Kerala High Court while considering whether a mandamus should be granted directing police protection for removal of goods from an establishment in which a strike is declared, has observed that although the WP/5476/2010 : 17 : right to strike is not a fundamental right, it is open for a citizen to go on a strike or withhold his labour. The Court observed that a strike is a necessary safety valve in industrial relations, when properly resorted to. It is a legitimate weapon in the matter of industrial relations. I am in respectful agreement with the observations made by the learned Judges in the aforesaid judgments. In fact, they are in consonance with the observations made by the Supreme Court in a catena of judgments including in the case of Kairbetta Estates (supra) and Gujarat Steel Tubes Ltd Vs Gujrat Steel Tubes Mazdoor Sabha, reported in 1980 (1) LLJ 137. 17. The Legislature, has taken cognisance of the fact that certain measures are adopted by the employers to break legitimate strikes and has incorporated such tactics as unfair labour practices under Schedule IV of the MRTU & PULP Act. These include employing contractors to do the regular work performed by striking employees and WP/5476/2010 : 18 : recruiting new employees during a strike. These are unfair labour practices mentioned in Items 2 and 8 of Schedule IV. In the present case it is common ground that the contractors who are working today in the factory were employed much before the strike was declared. Therefore, prima facie, there does not appear to be an unfair labour practice under Item 2 of the MRTU & PULP Act. 18. Item 8 deals with recruitment of employees during a strike which is not an illegal strike. Admittedly, the present strike has not been declared to be illegal. A complaint has been filed by the Company inter alia under Item 1 of Schedule III of the MRTU & PULP Act, which is pending. However, as matters stand today, the strike has not been declared to be illegal. In fact, as I have mentioned earlier, prima facie it does not appear to be an illegal strike. Recruitment of employees is prohibited during a strike. Could the verb ”to recruit” contained in Item 8 be restricted only to employing workers from the open market? Or would it WP/5476/2010 : 19 : include engaging workers from other Centers of the Company in the establishment where the strike has been declared. In my view the meaning of “to recruit” cannot be restricted. It must be given a wider meaning to include the employment of any person in the establishment where the strike is in progress, who was not on the muster rolls of that establishment prior to the commencement of the strike. This item must be so construed because the object of including this item as a unfair labour practice was to ensure that the Management does not gain an upper hand during the pendency of a strike by recruiting new hands in the establishment, whether from the open market or from their own establishments elsewhere, to ensure that business goes on as usual. The contention of the Company in this case that they would not be recruiting new employees from the open market but would be transferring some workers from their Centers in other parts of India and, therefore, were not committing an unfair labour practice is untenable. The contention is deceptively innocuous. There can WP/5476/2010 : 20 : be little doubt that the philosophy of a strike is to cause inconvenience, embarrassment and to bring to bear economic stringency on the Management so as to force it to accede the workers’ demands. It is highly inconceivable that such demonstrations or strikes on the part of the workmen are not intended to pressurizing the Management to yield to their demands. It is for this reason that the Legislature in its wisdom has incorporated Item 8 as an unfair labour practice. To give a narrow meaning to the expression “to recruit employees” would frustrate the object of the Act. If the legislature had intended it to be limited to recruitment of workers from the open market, it would have stated so. Therefore, in my opinion, this expression must include employees who are recruited from anywhere including other establishments of the Company, during the pendency of a strike which is not declared to be illegal. In fact, considering Items 2 and 8 of Schedule IV of the MRTU & PULP Act together indicates that the intention of the Legislature was to ensure that a strike which is WP/5476/2010 : 21 : not declared to be illegal should not be broken by the employer by recruiting workmen from anywhere in its establishment where a strike is in progress. 19. In the present case, the Industrial Court in its order dated 9th July, 2010, has observed that the Union has not specified the names of the workers who had been recruited after the strike was declared, in order to establish an unfair labour practice under Item 8 of Schedule IV of the MRTU & PULP Act. This finding of the Industrial Court is contrary to the record. Although the Union has not mentioned names of the workers, the intention of the Company to employ workers, other than the existing complement of workers, is clear from their affidavit filed by it in the Industrial Court. It has been averred categorically that no persons from the open market would be recruited but that the Company would bring in workers from its other Units to comply with the orders of the customers. This is sufficient indication of the employer’s intention to bring in new workers. Therefore, it is difficult WP/5476/2010 : 22 : to appreciate the findings of the Industrial Court that prima facie there was no unfair labour practice under Item 8 of Schedule IV of the MRTU & PULP Act. In my opinion, this statement of the employer indicates prima facie that the intention of the employer is to indulge in an unfair labour practice under Item 8 of Schedule IV of the MRTU & PULP Act. 20. The next issue is whether the Company should be restrained from removing machines, raw material, semi finished goods and finished goods from their establishment at Navi Mumbai. By an order dated 17th June, 2010 passed in Complaint (ULP) No.148 of 2010, the Industrial Court permitted the employer to remove the raw material pertaining to the six companies whose balance sheets were to be printed within a stipulated time. Undoubtedly, this raw material has been removed by the Company with great alacrity, once the Industrial Court granted relief to the Company in a complaint filed by the Union. The order has