C.W.P No.2439 of 1989 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.2439 of 1989 (O&M) Date of Decision: 10.07.2009 The YMCA Institute of Engineering, Faridabad, Haryana through its Director/Principal Shri D.R. Malhotra .......Petitioner Versus Presiding Officer, Industrial Labour Court-II, Faridabad Haryana and others ....Respondents Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Harminder Singh, Advocate for the petitioner. Mr. Harsh Aggarwal, Advocate for respondent Nos.3 and 4. Mr. R.P. Arya, respondent No.15 in person. Mr. Devender Kumar, respondent No.11 in person. Mr. Abdul Sattar, respondent No.38 in person. 2. C.W.P. No.16575 of 1989 R.P Arya and others .....Petitioners Versus Presiding Officer, Labour Court and others ....Respondents Present: Mr. R.P. Arya with Mr. Devender Kumar and Mr. Abdul Sattar, Petitioners in person. Mr. Kanwaljit Singh, Sr. Advocate with Mr. Harminder Singh, Advocate for the petitioner. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- C.W.P No.2439 of 1989 (O&M) -2- K. KANNAN J. 1. Scope 1. Both the writ petitions arise out of the same order of the Labour Court, Faridabad disposing of an application under Section 33-C(2) of the Industrial Disputes Act, 1947 filed by Sh. A.K. Chowdhary and 38 others against M/s Y.M.C.A. Institute of Engineering, Faridabad. By order dated 05.01.1989, the claim was awarded in favour of the workmen to the extent of 50% of wages. The Writ Petition No.2439 of 1989 is at the instance of the management and Writ Petition No.16575 of 1989 is at the instance of the workmen in so far as it disentitles them to the whole claim as sought for by them and admits of only 50% of the wages. 2. The question that fell for consideration before the Labour Court and which is urged by the respective counsel is the entitlement or otherwise of the workmen to claim wages during the period when there was alleged to be a lockout. Now to facts: II. Factual background 3. On 04.05.1983, the respondent-management declared a partial lockout in the Institute that was confined only to the non- teaching staff, though some of the employees of the non-teaching staff did not bear the brunt of the lockout. This was in response to an incident that was alleged to have taken place on 02.05.1983, when according to the management, three of the workmen had assaulted a person by name D.R. Malhotra and right from that day, the management had prevented the workmen to join duty to the forenoon of 11.10.1983. As stated above, this lockout was not clamped against C.W.P No.2439 of 1989 (O&M) -3- all the non-teaching staff and some of them had even been permitted to resume duty earlier after getting some form of undertaking from them. The petition was resisted by the management on the ground that a claim under Section 33-C(2) itself was not maintainable for there existed no prior adjudication regarding their entitlement to such amount before they applied to the Labour Court. The proceedings under Section 33-C(2) is in the nature of execution of a right, which is already determined and an adjudication regarding their entitlement to wages for a prior period where they were supposed to have been kept out of employment was not possible to be undertaken under Section 33-C(2). On a demand notice issued on 12.10.1983 with copy addressed to Conciliation Officer of the area for necessary action, the Government of Haryana had rejected all the demands and had reserved only demand No.2 that pertained to grant of revision of pay- scales for the non-teaching employees and that was referred to the Tribunal for adjudication. Adverting specifically to demand No.1 terming the partial lockout w.e.f. 04.05.1983 to 11.10.1983 as being illegal and the deduction of wages as arbitrary, mala fide and ultra vires, the response of the Government was that there was no justification for the demand since the workers could take up their claims for wages in the lockout period even before the Labour Court or before Payment of Wages Authority. III. Findings by the Labour Court 4. The Labour Court placed at the doorsteps of the workers and the management equal culpability and that it was to be apportioned roughly half and half between the parties. Consequently C.W.P No.2439 of 1989 (O&M) -4- it awarded 50% of the wages for the period when the workers were found to be not allowed to join duty. While passing the order, it adverted to the fact that Sh. R.P. Arya, who was one of the parties before this Court and who was also the representative of the workers gave Ex.M/29 dated 03.10.1983 expressing regret for the incidents and assuring the management not to resort to any agitation. 5. Adverting to the contention on behalf of the management that the Labour Court was not competent to entertain the petition, it observed that the Government itself had replied vide Ex.W-127 dated 23.07.1985 that the Union was at liberty to file its claim before the Court and that was sufficient for the workers to apply to the Court under Section 33-C(2) of the Industrial Disputes Act, 1947. IV. Contentions on behalf of management: 6. Learned Senior Counsel appearing on behalf of the management referred me to the fact that the point of reference was only with regard to demand No.2 that pertained to the application of revised scales of pay for non-teaching staff and that was not simply adjudicated at all by the Labour Court. Demand No.1, which related to the alleged illegality of the partial lockout and for non-payment of wages had not been referred at all and a mere statement that a claim could be adjudicated before Court or before the Payment of Wages Authority would not enable a Labour Court to entertain a claim under Section 33-C(2) without there being an adjudication earlier that the lockout was illegal or a reference to that effect directing such adjudication. He also would urge as regards jurisdictional issue, the Labour Court omitted to make reference to several decisions, which C.W.P No.2439 of 1989 (O&M) -5- were cited before it and in particular, he referred to the decisions of the Hon'ble Supreme Court and of this Court that lay down that Labour Court cannot decide the entitlement as incidental to its powers and compute the claims under Section 33-C(2) in the absence of prior adjudication or recognition by the employer. Municipal Corporation of Delhi and Ganesh Razak and another 1995 I LLJ 395 was a case where the daily rated/casual workers of Delhi Municipal Corporation claimed parity of wages on the basis of equal pay for equal work with regular employees and applied under Section 33-C(2) to which the Hon'ble Supreme Court responded by pointing out that in the absence of a prior adjudication or recognition of the employer of such right, the application under Section 33-C(2) itself was not maintainable. Chief Superintendent, Government Livestock Farm, Hissar Vs. Ramesh Kumar 1998 III LLJ (Supp.) 187 was a case where the Hon'ble Supreme Court held that the provision of Section 33-C(2) could not be invoked in cases where the entitlement itself was disputed. The same view found affirmation also in the decision of this Court in Gurminder Singh and others Vs. Batala Co-operative Sugar Mills Ltd. and another 1997 III LLJ (Supp.) 695 and of the decision of the Calcutta High Court in Gouranga Dhar & others Vs. State of West Bengal & others 1997 III LLJ (Supp.) 827. 7. The objection regarding the entitlement of the petitioner to resort to action by the only observation that the Government in its reference had stated that the petitioners could have the remedy before the authority was, according to learned Senior Counsel for the petitioner, not sufficient to vest in the Court a jurisdiction, which the C.W.P No.2439 of 1989 (O&M) -6- Labour Court did not possess. Section 7 of the Industrial Disputes Act, 1947 that constitutes the Labour Court, empowers it to take up the industrial disputes relating to any matter specified in Second Schedule and the adjudication relating to the illegality or otherwise of the lockout and the entitlement of wages was one of the specified items in Second Schedule that could be taken for adjudication only on due reference from the Government. There was an inherent flaw in taking up issue relating to a matter, which was not even referred to for adjudication before the Labour Court. If such a power could be sourced to the manner of disposal made by the State in directing that the workers could have the remedy before the Labour Court but at the same time it did not make a reference in so many words, the flaw ought to have been rectified by the workers resorting to appropriate action either by means of a writ petition before the High Court or applying for review of the decision taken by the Government not to make a reference with reference to demand No.1. V. Basis for invoking Section 33-C(2) 8. I am of the view that the workmen ought not to be rendered without any remedy at all on the admitted facts. The matter relates to a dispute that arose in the year 1980 that adverted to an adjudication for wages for a period of five months and the workmen were not allowed to resume duty. As a general proposition, a Labour Court would exercise jurisdiction only to already adjudicated right of wages under Section 33-C(2) of Industrial Disputes Act. However, it would be unduly restricting the tenor of language of the sub-section and emasculating its efficacy if the dispute by the management is a C.W.P No.2439 of 1989 (O&M) -7- moonshine and could not be countenanced by a bare look at the defence. In this case, admittedly, the management had not declared any lockout in the manner contemplated by the provisions of Industrial Disputes Act. In the statement of the management as culled out in the award of the Labour Court, it was pointed out: "...It so happened that on 03.02.1983 employees had held meeting in the institute loby during working hours creating a lot of disturbance and accordingly one circular was issued directing them not to do so but without any effect. Finding no way out, the management had pointed out that institute might be closed for them. It has been alleged that on 09.02.1983 workers had assembled in the Institute loby from 9.30 to 10.30 a.m. and then from 3.30 to 3.45 p.m. and provocative speeches were delivered and undesirable slogans were also raised. As a result of that senior officers were intimated and that had disturbed the teaching work also and that was pointed out to the union but they had paid a deaf ear to the request. To control the situation matter was brought to the notice of State Government and local administration was directed to extend full cooperation to restore normalcy and to avoid demonstration, slogans shouting and causing disturbance to the teaching of the students. Again it so happened that on 22.03.1983, certain visitors were present in the Institute campus and union members had assembled in the corridor and had raised slogans, shoutings and using highly abusive C.W.P No.2439 of 1989 (O&M) -8- language and they had followed the outsiders up to the conference hall and accordingly a serious protest was lodged with the union. It is alleged that the said union had started non-cooperation movement/dharna, relay hunger strike and fast unto death also and it was advised to discontinue the same but without any gain. It is pointed out that union had threatened on 02.05.1983 to go on hunger strike from 6.5.1983 at the residence of Chairman, Board of Governors also. On 02.05.1983 union members had raised highly provocative, indecence derogatory and abusive slogans against the Directors and he was held in duress also and an attempt was made to break open his office door and then only a letter of warning for a lockout was issued on 03.05.1983. Notwithstanding the above said union had adopted a tough attitude and threatened to continue dharna strike etc and then only in compelling circumstances, respondent had declared a partial lockout w.e.f. 04.05.1983 debarring members of non-teaching staff union from entering the Institute premises. The claim made is that it had declared a lawful lockout after proper warning and due notice and as such, applicants are not entitled for any wages since they had not worked during the said period. Objection has also been raised about the jurisdiction of Labour Court as matter in dispute has not been referred to it by the State Government. It is also pointed out that applicants are not entitled to C.W.P No.2439 of 1989 (O&M) -9- receive any money or benefit and Labour Court is not competent to declare the said lockout as illegal, once since it is not within its jurisdiction....." 9. There is nothing like a partial lockout against a section of workmen and that too, only against some of non-teaching staff. A partial lockout is not merely a misnomer but also a brazen illegal act that does not afford to the management to fend off workmen and keep them at bay. If the government had not made a reference on demand No.1, it did not mean that it condoned the action of the management. On the contrary, it did something more. It assumed the illegality of partial lockout as too manifest to require adjudication and counseled that the workmen could put up their claim for wages for the lockout period either before the Labour Court or the Payment of Wages Authority (vide Ex.P5). Of course, the language of the government's response was not happily worded but that could not be held out against the interest of labour. 9. In Sahu Minerals and Properties Ltd. Vs. Presiding Officer, Labour Court (1976) 3 SCC 93, the Hon'ble Supreme Court has held, "Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employer (underlining mine)." Further the Hon'ble Supreme Court has also held, in the context of powers of Court under Section 33-C(2) in Fabril Gassoca Vs. Labour Commissioner (1997) 3 SCC 150 that the rights conferred under Section 33-C(2) are wider than the ambit and C.W.P No.2439 of 1989 (O&M) -10- operation of Section 33(1) and in addition to any other mode of recovery. The workmen's right to apply for wages during a 'partial lockout', which is a legal oxymoron, cannot be doubted by the only fact that the right was denied by the management. The Labour Court was, therefore, perfectly justified in exercising jurisdiction to award wages. VI. Conclusion 10. The quantum of their entitlement was the only area of adjudication and the Labour Court was justified from the conduct of their representative expressing regret for the incidents, in apportioning the workmen's culpability to 50% and striking out 50% of wages. If the partial lockout by the management was illegal, perhaps it was not wholly unjustified. The workmen had literally forced the issue to the unsavoury pass that they had arrived at. The Labour Court had applied the scales even and has awarded 50% of wages during the period, when the workmen were unjustly prevented from resumption of work. The award of the Labour Court is, under the circumstances justified and no interference is called for. 11. The writ petitions are consequently dismissed. No costs. (K. KANNAN) JUDGE July 10 , 2009 Pankaj*