-: 1 :- 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 ... Mr.N.M.Ganguli for the petitioner. -: 2 :- Mr.V.P.Vaidya for respondent no.1. Mr.P.M.Palshikar for respondent no.2. Mr.M.S.Topkar for respondent nos.3 & 4. ... CORAM : S.A.BOBDE, J. DATE : AUGUST 06, 2008. ORAL JUDGEMENT: 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. 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. 3. On 6.5.1983, due to rivalry between the petitioner-Union and the recognised Union, there was -: 3 :- general indiscipline and the respondent gave a lock out 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 -: 4 :- 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. 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. 5. On the demand of the petitioner, the Government of Maharashtra referred the following disputes to the Industrial Tribunal:- "a) that all the workmen Smt.Indira G. 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. b) all the workmen should be allowed to resume duty with immediate effect and pay -: 5 :- full wages to all the workmen from 3rd March 1989 till they are allowed to resume duty with 18% interest till payment is made." The Tribunal has answered the issues against the petitioner. Hence, this petition. 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. 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 examine the award of the Tribunal. At the outset, it may be noted that strike notice was received by the -: 6 :- 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. 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 Estate v. Workmen, reported in AIR 1960 SC 902, wherein the Supreme Court -: 7 :- has observed as follows:- "While on the one hand it has to be 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." 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. -: 8 :- 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:- "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 -: 9 :- employees are not provided with work. In view of the agreement entered into by the recognised Union, I am satisfied that there is no case for the workmen. Petition is therefore rejected." 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. 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 -: 10 :- 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. 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 -: 11 :- 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. 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 discharged. S.A. BOBDE, J.