WP/1072/2000 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1072 OF 2000 Association of Chemical Workers ... Petitioner V/s. M/s.Reshma Dyeing Pvt. Ltd. & anr. ... Respondents Mr.N.D. Buch i/b Ms.Bina Dholakia for Petitioner None for Respondents CORAM: SMT.NISHITA MHATRE, J. DATE: FEBRUARY 17, 2011 ORAL JUDGMENT: 1. The petition has been preferred against the order dated 5.7.1999 passed by the Industrial Court in Complaint (ULP) No.422 of 1989. The brief facts which must be noticed while determining the issues involved in the writ petition are as follows: On 7.4.1978, an application was filed by the respondent company under the Bombay Industrial Relations Act for a declaration that the strike commenced by the workmen employed by it was illegal. The Labour Court by its order allowed the application and declared the strike to be illegal on 3.5.1978. A notice was published by Respondent company in the local newspapers calling upon the workmen to resume duty w.e.f. 8.5.1978 after tendering an undertaking for good behaviour in writing. The employees were informed through this public notice that failure to furnish the undertaking would result in their names being struck off from the muster roll. The WP/1072/2000 : 2 : petitioner union by its letter dated 7.5.1978 informed the company that the workman had withdrawn the strike and that they would present themselves to resume work on 8.5.1978. The union informed the company categorically that the workmen would not submit any undertaking in writing as a pre-condition for resuming duty. 2. As scheduled, 400 workmen presented themselves for resuming duty at 7 am on 8.5.1978. The Company, however, refused to permit those workers who did not submit the undertaking to resume work. Accordingly about 280 workmen were not allowed to resume work. The Union requested the company again on the same day, by its letter, to allow the workmen to resume work forthwith. It was also mentioned in the letter that failure to do so would amount to imposition of an illegal lockout. The company replied to the union's letter denying all allegations contained in its letter dated 7.5.1978. The company continued with its stance of refusing permission to resume work to those employees who had not submitted the undertaking. 3. An application was preferred by the union before the Industrial Court under sections 78, 79, 80, 80C and 98(1) r/w 3(24) of the Bombay Industrial Relations Act for a declaration that the company had commenced an illegal lockout. It appears that some of the workmen were discharged on 12.5.1978 on the ground that the company had lost confidence in them. 4. By its order dated 8.9.1978, the Labour Court declared that the action of the company of refusing employment to the employees who were unwilling to submit an undertaking amounted to an illegal lockout within the meaning of section 98(1)(a) and (b) r/w section 3(24) of the Bombay Industrial Relations Act. WP/1072/2000 : 3 : 5. Aggrieved by this decision, the company filed a revision application u/s 85 of the BIR Act on 10.9.19789. That revision application was allowed and the order of the Labour Court was set aside. 6. The union then preferred Writ Petition No.1353 of 1980 against the order of the Industrial Court. It appears that the matter was heard by the Division Bench (consisting of P.B. Sawant and Vaze, JJ.) on 1.10.1987. However, there was a difference of opinion between the learned Judges as to whether the demand for an undertaking of good behaviour from workmen who wanted to resume work after their strike was declared illegal, amounted to an unfair labour practice. The matter was then referred to a third learned Judge of this Court R.A. Jahagirdar, J. On 6.7.1988, Jahagirdar, J. concurred with the view of Sawant, J. and held that the undertaking demanded from the workmen required them to make two confessions, namely, that the strike was illegal and that after entering the factory they would not damage the property of the Company. It was further held that refusal by the company to provide work to the employees without such an undertaking would amount to a lockout being effected in breach of the provisions of law. The Division Bench then by its order dated 27.1.1989 allowed the petition, set aside the order of the Industrial Court and restored the order of the Labour Court. 7. The union by its letters dated 15.4.1989 and 30.41989 called upon the Managing Director of the Company to permit the workmen covered by the judgment of the High Court to resume work. The company was adamant and refused to comply with the judgment of the High Court as noted from its letters dated 4.5.1989 WP/1072/2000 : 4 : and 8.5.1989. Further correspondence ensued between the parties. However, it appears that the company was recalcitrant and refused to budge an inch to permit the workmen to resume work. Left with no alternative, the union then filed Complaint (ULP) no.422 of 1989 before the Industrial Court, Thane under Items 6 of Schedule II and Items 1, 9 and 10 of Schedule IV of the MRTU & PULP Act. This complaint was filed on 28.8.1989. The union produced documents indicating that the illegal lockout continued despite the orders of this Court. The complaint was decided on 5.7.1999. The Industrial Court framed the following issues and answered them accordingly: 1 Whether the Complainants union proves that the Respondent effected illegal lock out against the concerned employees w.e.f. 8th may 1988 as alleged? Yes 2 Whether the Complainants further proves that the Respondent' said action constitutes exercise of force within the meaning of item 10 of schedule IV of the MRTU & PULP Act, 1971? No 3 Whether the Respondents prove that the concerned employees, there exist no employer employees relationship between the Respondents and the said workmen after 12.5.1988 as alleged? Yes 4 Whether the Respondent' aforesaid action constitutes implied or express breach of the conditions of service of the employees as alleged? No 4A Whether the Complainant union has locus standi to file complaint and whether the complaint is maintainble? No 5 What unfair labour practices, if any, the Respondents prove to have committed? Partly Yes 6 What order. As per final order. The complaint was ultimately dismissed. WP/1072/2000 : 5 : 8. Ms.Buch, appearing for the union, submits that the order of the Industrial Court contains serious errors of law which has resulted in a miscarriage of justice. She submits that when the Industrial Court had held that the union had proved that the respondent company had effected an illegal lockout against the employees w.e.f. 8.5.1988, the complaint could not have been dismissed. According to her, the Industrial Court has erred in concluding that there was no employer-employee relationship between the concerned workmen and the respondents after 12.5.1988. Furthermore, Ms.Buch points out that when the Court has held that there was an illegal lockout, the consequence would be that there was an implied or express breach of the conditions of service of the employees concerned. She then submits that the Industrial Court has committed an error by concluding that the union had no locus standi to file the complaint, because it was not a recognised union. 9. There can be no doubt that the company had declared an illegal lockout on and from 8.5.1978 by insisting on undertakings from the employees. It has been so held by this Court by its order dated 27.1.1989. The order of the Labour Court in application (BIR) No.138 of 1978 declaring that the company had commenced the illegal lockout from 8.5.1978 was upheld. In these circumstances, the Industrial Court could not have arrived at a contrary conclusion by holding that there was no express or implied breach of the conditions of service of the employees. Furthermore, once the Tribunal had concluded that there was an unfair labour practice inasmuch as there was an illegal lockout commenced by the company, the Industrial Court ought to have granted consequential reliefs to the union and the employees represented by it. The Industrial Court has observed that 65 employees WP/1072/2000 : 6 : were terminated from service w.e.f. 12.5.1979. It appears that all of them had challenged these orders passed against them. Some applications were rejected while others were pending when the Industrial Court decided the complaint. There is no material before me to indicate that those workmen have been reinstated in service pursuant to orders passed by a competent Court. 10. The Industrial Court has also found that the union had no locus to file the complaint. It relied on the judgment in the case of Shramik Utkarsha Sabha vs. Raymond Wollen Mill Ltd. & Ors., reported in 1995 I CLR 607. The complaint was filed under Item 6 of Schedule II and Items 1, 9 and 10 of Schedule IV of the MRTU & PULP Act. Complaints relating to unfair labour practices under Items 2 and 6 of Schedule IV of the MRTU & PULP Act are required to be filed through a recognised union or by the workmen concerned. An unrecognised union cannot file complaints on behalf of the workmen in respect of any grievance which amounts to an unfair labour practice under Items 2 and 6 of Schedule IV. However, this does not mean that an unrecognised union cannot file a complaint in respect of the other Items when a recognised union does not exist in the concern. The Industrial Court unfortunately lost sight of the fact that the present complaint was not filed under Items 2 or 6 of Schedule IV of the MRTU & PULP Act and, therefore was maintainable, though filed by an unrecognised union. Admittedly there was no other union functioning in the estbalishment. 11. In my opinion, there can be no doubt that the company has indulged in unfair labour practices under Item 6 of Schedule II and Item 9 of Schedule IV of the MRTU & PULP Act. WP/1072/2000 : 7 : 12. One of the prayers sought by the Union in its Complaint, besides the usual prayer for a declaration is as follows: c) that this Hon'ble Court may be pleased to direct the Respondent company, their directors, servants and agents by a mandatory order to lift the illegal lock out and to reinstate the employees and to allow the employees resume work with continuity of service and to pay them their full back wages from 8th May 1978 till they are so allowed to resume work, as if the employees were on duty for the entire period for all purposes.” 13. In my opinion, the Court cannot direct an employer to lift a lockout which is illegal nor can it direct workmen to withdraw a strike which is illegal. It can only declare a lockout or strike illegal and specify the consequences of continuance of such an illegal lockout or strike. In my opinion, therefore, since the illegal lockout commenced and continued from 8.5.1978, the workmen are entitled to wages from that date till they are allowed to resume work, without any undertaking. However, those 65 workmen who have been terminated from service would not be entitled to any amounts after 12.5.1978 unless so directed by any competent Court. 14. In these circumstances, the Petition is allowed. Rule made absolute. No costs.