IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10.12.2007 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR W.A. NO. 777 OF 2007 W.P. NOS. 13742, 13743, 14024, 18075, 19077 & 19078 OF 2007 AND M.P. NOS. 1 OF 2007 M.P. NOS. 2 OF 2007 & M.P. NO. 4 OF 2007 W.A. NO.777 OF 2007 & WP.No.19077/07 & WP.19078/07 : 1. The General Secretary Kovai Mavatta Pricol Thozhilalar Thozhir Sangam 2/267, Uday Nagar Ganapathy (PO), Coimbatore 641 06. 2. The General Secretary Kovai Mavatta Pricol Employees Trade Union (Regd.) 122A1, Soundarya Illam Ranga Nagar Perianaickenpalayam Coimbatore 641 020. .. Appellants 1 & 2 in WA.777/07 .. 8th & 9th Respondents in WP.19077 & 19078/07 - Vs - 1. The General Manger – HR The Management of Pricol Ltd. Perianaickenpalayam Coimbatore 641 020. .. 1st Respondent in WA.777/07 .. Petitioner in WP.No.19077/07 & 19078/07 2. The Secretary to Government of Tamil Nadu Labour & Employment Department Secretariat, Chennai 600 09. .. 2nd Respondent in WA.777/07 .. 1st Respondent in WP.19077/07 & 19078/07 3. The Presiding Oficer Industrial Tribunal Chennai 600 009. .. 3rd Respondent in WA.777/07 .. 2nd Respondent in WP.19077/07 & 19078/07 https://hcservices.ecourts.gov.in/hcservices/ 4. The General Secretary Kovai Mavatta Pothu Thozhilalargal Munnetra Sangam (LPF) 710A, Cross Cut Road, Tatabad Coimbatore 641 012. .. 4th Respondent in WA.777/07 .. 3rd Respondent in WP.19077/07 & 19078/07 5. The General Secretary Kovai Mavatta Poriyiyal Pothu Thozhilalar Sangam (AITUC) 83-G, Kandasamy Nagar PNM Colony Coimbatore 641 019. .. 5th Respondent in WA.777/07 .. 4th Respondent in WP.19077/07 & 19078/07 6. The General Secretary Kovai Mavatta General Engineering and Mechanical Workers Union (CITC) Coimbatore - 641006. .. 6th Respondent in WA.777/07 .. 5th Respondent in WP.19077/07 & 19078/07 7. The General Secretary Coimbatore Desiya Engineering and General Employees Union (INTUC) 37, Head Post Office Road Coimbatore 641 01. .. 7th Respondent in WA.777/07 .. 6th Respondent in WP.19077/07 & 19078/07 8. The General Secretary Pricol Working Peoples Trade Union 15, Pattakra Street Jothipuram Coimbatore 641 047. .. 8th Respondent in WA.777/07 .. 7th Respondent in WP.19077/07 & 19078/07 WP.No.13742 of 2007 : The Secretary Kovai Maavatta Pricol Employees Trade Union (Regd.) 122A1, Soundarya Illam, Ranga Nagar, Perianaickanpalayam, Coimbatore - 641020. Petitioner in WP.No.13742 & 13743/07 vs 1. Government of Tamil Nadu, Rep. by The Secretary to Government, Labour and Employment Department, Fort St.George, Chennai - 600009. 1st Respondent in WP.13742 & 13743/07 https://hcservices.ecourts.gov.in/hcservices/ 2. The Commissioner of Labour, Labour Welfare Building, DMS Compound, Chennai - 600006. 3. The Joint Commissioner of Labour, Dr.Balasundaram Road, Coimbatore - 641018. 2 & 3rd Respondent in WP.13742/07 4. The Management of Pricol Ltd., Perianaickanpalayam, Coimbatore - 641020. 4th Respondent in WP.13742/07 2nd Respondent in WP.13743/07 WP.No.14024 of 2007 : Pricol Limited, Perianaickenpalayam, Coimbatore - 641020, rep. by its Senior Manager - HR and Authorised Representative, Mr.M.Manickam. Petitioner in WP.14024/07 vs 1. The Secretary to Government, Labour and Employment Department, Fort St.George, Chennai - 600009. 2. The General Secretary, Kovai Maavatta Pothy Thozhilarlargal Munnetra Sangam, Coimbatore (LPF) 3. The General Secretary, Proiyeal Pothu Thozhilalar Sangam (AITUC) Coimbatore. 4. The General Secretary, Kovai Maavatta General Engineering and Mechanical Workers Union (CITU) 5. The General Secretary, Desiya Engineering and General, Employees Union (INTUC) Coimbatore. 6. The General Secretary, Pricol Working Peoples Trade Union, Coimbatore. 7. The General Secretary, Kovai Mavatta Pricol Thozhilalar Thozhirsangam, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 8. The General Secretary, Kovai Maavatta Pricol Employees Trade Union, Coimbatore. Respondents in WP.14024/07 WP.No.18075/07 : The Secretary, Kovai Mavatta Pricol Employees Trade Union (Regd.) 122A1, Soundarya Illam, Ranga Nagar, Perianaickanpalayam, Coimbatore - 641020. Petitioner in WP.18075/07 vs 1. Government of Tamil Nadu, Rep. by The Secretary to Government, Labour and Employment Department, Fort St. George, Chennai - 600009. 2. The Joint Commissioner of Labour, Dr.Balasundaram Road, Coimbatore - 641018. 3. The Management of Pricol Ltd., Perianaickanpalayam, Coimbatore - 641020. Respondent in WP.18075/07 Writ Appeal filed against the order dated 30th May, 2007, passed by learned single Judge in MP.No.2/2007 in W.P. No.19077 of 2007. MP.No.2/2007 filed for the orer of interim stay of operation of the order of the 1st respondent dated 24.05.2007 in G.O(D).No.398 pending disposal of WP.No.19077/2007, filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records of the 1st Respondents dated 24.05.2007 in G.O(D) No.398 and quash the same. Petitions filed under Article 226 of the Constitution of India, 1) praying for the issuance of a Writ of Certiorari, calling for the records of the 1st respondent dated 24.05.2007 in G.O(D) No.397 and quash the same (WP.19078/07) 2) Praying for issuance of a Writ of Mandamus, directing the 1st respondent herein to issue orders under Section 10-B of the Industrial Disputes Act 1947 to both parties to restore status quo as on 02.03.2007 viz-a viz all the issues related to the strike as well as lockout (in WP.13742/07). https://hcservices.ecourts.gov.in/hcservices/ 3) praying for issuance of a Writ of Certiorari, calling for the records from the fileds of the 1st respondent relating to the impugned G.O.No.287, Labour & Employment (D1) Department, dated 10.04.2007 and quash the same (in WP.14024/07) 4) praying for issuance of a Writ of Mandamus directing 1st respondent herein to dispose of the representation of the petitioner dated 22.04.2007 and to take action against the 3rd respondent for committing unfair Labour practise under Section 25-U of this Industrial Disputes Act 1947 (in WP.18075/07). 5) praying for issuance of Writ of Certiorarified Mandamus calling for the records from the files of the 1st respondent relating to the impugned G.O (D) 287, Labour and Employment (D1) Department dated 10.04.2007 and quash the same and consequently direct the 1st respondent to refer all the issues namely (i) the justifiability of partial lock out dated 16.03.2007 imposed on the employees of Satellite Vendor units of the Management of Pricol Ltd., (ii) Justifiability of termination of hundreds of so called other contract labourers of the Management of Pricol Ltd., during conciliation proceedings (iii) justifiability of partial lock out dated 05.04.2007 of Ms.Neelaveni, Geetha Rani, Murali Manoharan, Selvaraj, and Sivasami (iv) justifiability of punishment of Break-in-servie imposed on 70 employees by letter - dated 05.04.2007 and (v) justifiability of partial lock-out dated 05.04.2007 of M/s. K.Kaliannan and 5 others for adjudication and to pass such other order or direction as this Honourable Court may deem fit and proper in the circumstances of the case, and thus render justice. *Prayer amended as per order dated 16.04.2007 by KCJ in MP.No.3/07 in WP.13743/07.(WP.No.13743/07). For Appellant : Mr. S.Kumaraswamy in WP.No.777/07 For Petitioners : Mr.S.Kumaraswamy in WP 13742 & 13743/07 Mr. Sanjay Mohan for M/s. Ramasubramaniam Associates in in WP 14024/07 Mr. A.L.Somayaji, SC for M/s.T.S.Gopalan & Co. in WP 19077 & 19078/07 Mr. K.Suresh in WP 18075/07 For Respondents : Mr.A.L.Somayaji, SC, for M/s.T.S.Gopalan & Co. in WA 777/07 for R1 Mr. D.Srinivasan, AGP for RR-2 & 3 in WA 777/07; for R-1 in WP 13743, WP.13742, 14024 & & for RR-1 & 2 in WP 18075/07, 19077, 19078/07 Mr. Sanjay Mohan for M/s.Ramasubramanian Associates for R-2 in WP 13743/07 Mr. S.Kumaraswamy for RR-1 to 7 in WP 14024/07. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT S.J.MUKHOPADHAYA, J. In all these cases, as common question of law involved and arise out of dispute between the parties, they were heard together and disposed of by this common judgment. 2. Under the Management of Pricol Ltd. - petitioner in some cases, (hereinafter referred to as 'Company'), a number of workmen were working. Apart from Kovai Mavatta Pricol Thozhilalar Thozhir Sangam and the Kovai Mavatta Pricol Employees Trade Union (hereinafter referred to as 'Trade Union'), there are other recognised trade unions in the company. Six workers of the company, who were posted at Coimbatore (State of Tamil Nadu), were suddenly transferred to a far off place in the State of Uttrakhand. Such transfer gave rise to a strike call given by the workers. There being dispute, the State Government had to refer such dispute and had to pass prohibitive orders u/s 10 (3) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') as also order u/s 10-B of the Act. The company and trade unions have challenged such order in their respective writ petitions as detailed hereunder :- i) W.P. No.13742/07 – preferred by the trade union for direction on the State to issue order u/s 10-B of the Act and to restore status quo as on 2nd March, 2007. ii) W.P. No.13743/07 – preferred by the trade union against G.O. (D) No.287 dated 10th April, 2007, issued u/s 10 (1) (d) of the Act. iii) W.P. No.14024/07 – preferred by the management of the company against the aforesaid G.O. (D) No.287 dated 10th April, 2007. iv) W.P. No.18075/07 – preferred by trade union for direction on respondents to dispose of their representation and to take action against the management of the company u/s 25-U of the Act for committing unfair trade practice. v) W.P. No.19077/07 – preferred by management of the company against G.O. (D) No.398 dated 24th May, 2007, issued by the State u/s 10-B of the Act. vi) W.P. No.19078/07 – preferred by the management of the company against G.O. (D) No.397 dated 24th May, 2007, issued u/s 10 (1) (d) of the Act. In one of the writ petition, W.P. No.19077/07, learned single Judge having passed interim order on 30th May, 2007, W.A. No.777/07 has been preferred by the trade union against the interim order. 3. At the time of hearing, learned counsel appearing on behalf of the trade union submitted that in view of notification issued u/s 10-B of the Act, W.P. No.13742/07 has become infructuous. It was further informed that during the pendency of the writ appeal and other writ petitions, in view of interim order passed by this Court in the writ appeal, as industrial peace is existing, the trade union has decided not to press W.P. Nos.13743 and 18075/07. He requested to dispose of W.A. No.777/07 taking into consideration the submission of the parties and to dismiss the https://hcservices.ecourts.gov.in/hcservices/ rest three writ petitions preferred by the management of the company on its own merits. 4. It appears that 4 workers of Plant-III and 2 workers of Plant-I were transferred by the company on 3rd March, 2007 from Coimbatore (State of Tamil Nadu) to a far distance to Uttrakhand. About 600 workers of Plant-III immediately proceeded on strike followed by 1500 workers of Plant-I, who proceeded on strike on 5th March, 2007. The parties took up the matter with the Assistant Commissioner of Labour (C), Coimbatore on 7th March, 2007 and 9th March, 2007, but the management of the company refused to recall the order of transfer. There was a road blockade agitation on 9th March, 2007. Demonstrations were made by about 1000 workers of Plant-I and Plant-III, which continued till 10th March, 2007. Coimbatore- Mettupalayam road was obstructed. The State officials such as Revenue Divisional Officer and Assistant Commissioner of Labour had to reach the spot to persuade the workers to withdraw the strike. On 10th March, 2007, about 2166 workers were arrested by police, including 500 women and workers working in ancillary units of the company. They were released on the same day. The Joint Commissioner of Labour, Coimbatore also tried to settle the dispute, but failed to persuade. The management demanded that the workers should withdraw the strike and give an individual undertaking before reporting to work. The workers wanted recall of the order of transfer. In absence of any reconciliation, the management declared lockout on 16th March, 2007 in respect of 16 workers of Plant-I and 15 workers of Plant-III. On 17th March, 2007, lockout was also declared in regard to 17 workers of Plant-I and 17 workers of Plant-III. According to the management, they had declared partial lockout in respect of 64 workers on 16th March, 2007. On 20th March, 2007, about 200 workers reported for work. The Commissioner of Labour also intervened on 2nd April, 2007, but failed. About 1500 workers entered the company on 3rd April, 2007 and instigated the other workers not to work. On the complaint of the management, the police tried to remove the striking workers, many of whom threatened immolation, but in view of disturbance, the police had to use force. A number of students of Coimbatore Law College, in support of the workers, observed fast on 4th April, 2007, along with 80 workers of the company. It was also informed that the striking workers were persuading the traders, public and political parties to render their support. This was reported by the Joint Commissioner of Labour, Coimbatore, who also informed that the situation was grave and serious. On 4th April, 2007, proposal was sent for referring the dispute to Tribunal and to prohibit the strike and lockout. Revised proposal was forwarded by Commissioner of labour on 5th April, 2007, for such reference u/s 10 (1) (d) and for issuance of prohibitory order u/s 10 (3) of the Act. On the same day, 5th April, 2007, management imposed punishment of break-in-service on 147 workers. In the aforesaid situation, the State Government had to make reference of the dispute u/s 10 (1) (d) by G.O. (D) No.286 dated 10th April, 2007. Further, taking into consideration the situation, the State Government issued prohibitory order u/s 10 (3) vide G.O. (D) No.287 dated 10th April, 2007, gist of which could be derived from the order, as quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ “LABOUR AND EMPLOYMENT (D1) DEPARTMENT G.O. (D) No.287 Dated : 10.04.2007 1. G.O. (D) No.286, Labour and Employment Department dated 10.04.2007 2. From the Commissioner of Labour, Letter No.A4/12886/2007, dated 10.3.2007, 12.3.2007, 13.3.2007, 27.3.2007, 4.4.2007 & 5.4.2007 Order : Whereas the Government by Government order first read above have referred the 7 issues relating to (i) the transfer of certain workers of Pricol Limited, Coimbatore to their Plant at Uttaranchal State. (ii) Legality and justifiability of the strike by workmen of Pricol Limited, Coimbatore. (iii) Partial Lockout of 64 employees, by the management of Pricol Limited, Coimbatore.(iv) Engagement by the management of new Contract Labours through new contractors pending conciliation when the workmen are on strike. (v) The justifiability of the insistence of the management of Pricol Limited, Coimbatore, that all workmen should give individual undertaking. (vi) The justifiability of the demand of the Kovai Mavatta Pricol Thozhilalar Thozirsangam and Kovai Mavatta Pricol Employees Trade Union that the management of Pricol Limited, Coimbatore, should negotiate only with them. And whereas the Government after considering all the aspects of the Commissioner of Labour, the circumstances of this dispute, the sequence of events masting from the transfer of workmen leading to the commencement of the strike by the workmen of Pricol Limited, Coimbatore, Plant- I and III, the consequent road blockade resorted to by the workmen, large number of workmen involved in the dispute and the reluctance of the management and the Union to set right the issues through conciliation, are of the opinion that the strike in Pricol Limited, Coimbatore, Plant-I and Pricol Limited, Coimbatore, Plant-III and the partial lockout of workmen of Pricol Ltd., Plant-I and Plant-III, numbering 64, should be prohibited. Now, therefore, in exercise of the powers conferred by section 10 (3) read with section 23 (b) of the Industrial Disputes Act, 1947, the Governor of Tamil Nadu hereby makes the following order:- https://hcservices.ecourts.gov.in/hcservices/ ORDER : Pending adjudication of the industrial disputes referred for adjudication to the Industrial Tribunal, Chennai, in the Government order first read above, the Government prohibit the continuance of the strike by the workmen of Pricol Limited, Coimbatore, Plant-I and Pricol Limited, Coimbatore, Plant-III and the partial lock out of 64 workmen of Pricol Limited, Coimbatore, Plant-I and Pricol Limited, Coimbatore, Plant-III, as listed in the Annexure to this order, with immediate effect.” In view of the prohibitory order, the lockout was withdrawn, the workers also returned for work except 6 workers of Plant-III and 5 workers of Plant-I in respect of which partial lockout was declared by the management. The management also ordered break-in-service in respect of 92 workers of Plant-I and 54 workers of Plant-III, total of 147 workers. A number of workers, who were working in the satellite vendor unit of the company, in respect of them, notice u/s 25-FFA was issued proposing closure of the unit. Having noticed the situation, the Commissioner of Labour, Coimbatore, requested the State to issue notification u/s 10-B, but the management opposed the same and by letter dated 2nd May, 2007, requested the Minister of Labour not to pass such order u/s 10-B of the Act. In the meantime, a number of new workers were engaged by the management. This aggravated the situation. The State Government having noticed all the relevant facts, issued G.O. (D) No.397 dated 24th May, 2007, referring further dispute u/s 10 (1) (d). Another order, G.O. (D) No.398 was issued on 24th May, 2007, u/s 10-B whereby the State Government directed the management and workers to follow certain norms and it was ordered not to give effect to the order of transfer or break-in-service. 5. Mr. A.L.Somayaji, learned senior counsel appearing on behalf of the management took the following plea while assailing the order, G.O. (D) No.287 dated 10th April, 2007, issued u/s 10 (3) of the Act :- a) The State Government cannot avail power u/s 10 (3), the very same issue, i.e., lockout and strike being matters of adjudication before the Labour Tribunal. According to him, order prohibiting strike or lockout u/s 10 (3) could be passed in connection with reference of some other dispute, but not in connection with reference, wherein strike and lockout is the dispute referred. b) Strike and lockout having referred to as dispute for adjudication u/s 10 (1) (d), any order prohibiting strike or lockout u/s 10 (3) will amount to interference with the procedure of industrial tribunal, which has to give final verdict. c) The power u/s 10 (3) cannot be exercised except in rarest case, where public interest is involved. d) The impugned order has to be tested on the basis of the reasons mentioned in the Government Order, which do not satisfy the principle of reasonableness and so the order must fail. https://hcservices.ecourts.gov.in/hcservices/ e) It was incumbent on the part of the State to give opportunity to the management before issuance of order u/s 10 (3), failure of which resulted in violation of rules of natural justice. 6. So far as the order issued u/s 10-B vide G.O. (D) No.398 dated 24th May, 2007, is concerned, the following submission was made by the learned senior counsel for the management :- i) The State Government had no jurisdiction to issue order u/s10-B, the company being not a public utility service. ii) In absence of any disturbance of public order, road blockade agitation having come to an end on 10th March, 2007, notification u/s 10-B was not called for. iii) The order u/s 10-B having passed without notice to the company and in violation of Chapter V of the Act, it violates rules of natural justice. 7. The management has also challenged the reference as made by the State u/s 10 (1) (d) vide G.O. (D) No.397 dated 24th May, 2007 on the ground that there was no industrial dispute for reference. According to the learned senior counsel, there should be a demand by union for constituting a dispute and in its absence no dispute could be referred. 8. We have heard the parties and noticed the rival contentions. It is not in dispute that the State Government is empowered to refer any dispute for adjudication u/s 10 (1), if in its opinion a dispute exists or is apprehended. Under Section 10 (3), the appropriate Government may also prohibit continuance of any strike or lockout in connection with dispute already referred, as evident from the said provision and quoted hereunder :- “10. Reference of disputes to Boards, Courts or Tribunals * * * * * * * * (3) Where an industrial dispute has been referred to a Board, [Labour Court, Tribunal or National Tribunal] under this section, the appropriate Government may by order prohibit the continuance of any strike or lock- out in connection with such dispute which may be in existence on the date of the reference.” From the aforesaid provision it will be evident that there are two ingredients to be satisfied before issuance of order u/s 10 (3), i.e., a) an industrial dispute has been referred for adjudication; and b) there is a strike or lockout in existence on the date of reference in connection with such dispute. 9. The aforesaid provision – Section 10 (3) fell for consideration before different Courts from time to time. In the case of Maharaja Kishangarh Mills Ltd. - Vs – State of Rajasthan reported in AIR 1953 Raj 188 :: (1953) II LLJ 214 (Raj) :: Manu/RH/0067/1953., a Division Bench of the Rajasthan High Court observed as follows :- https://hcservices.ecourts.gov.in/hcservices/ “In order that the strike or lock-out may be in connection with a dispute it is necessary that the strike or lock-out should be something different from the dispute itself. A strike or lock-out which is the subject-matter of the dispute itself cannot be termed to be a strike or lock-out in connection with such a dispute within the meaning of Section 10 (3). A strike or lock-out which is itself;f a dispute would not justify an order under Section 10 (3) for its prohibition because the language of Section 10 (3) requires that a strike or lock-out should be in connection with a dispute, in order that an order for its prohibition might be made by the Government. Where the strike is not in connection with a dispute but it itself a dispute the matter is quite different and would not justify an order of prohibition. The discretion of the Government therefore which has been exercised in the present case in making an order of prohibition is beyond the scope of Section 10 (3).” Another Division Bench of the Andhra Pradesh High Court in the case of Eenadu Press Workers Union & Anr. - Vs – Government of Andhra Pradesh & Anr. reported in 1979 (1) LLJ 391, having noticed the fact that strike was in connection with a dispute referred, namely, dispute relating to claim for wages and D.A., held that the State Government was entitled to issue prohibitory orders u/s 10 (3). The Court further observed that it is not necessary for the State Government to issue a show cause notice to the parties before issuance of order u/s10 (3). Though right to strike is a valuable right in the hands of the employees, but that is not a fundamental right. In another case of State Transport Employees Federation, Orissa – Vs – State of Orissa & Ors. reported in 1990 LIC 1591, a Division Bench of Orissa High Court held that for invoking power u/s 10 (3), two conditions must exist, (i) there must be an industrial dispute in existence and (ii) such dispute must have already been referred for adjudication. The Court further held that the prohibition u/s 10 (3) cannot be exercised in respect of industrial dispute not referred. The view taken by the various High Courts was also affirmed by the Supreme Court in the case of Delhi Administration – Vs – Workmen of Edward Eventers & Anr. reported in 1978 (II) LLJ 209 (SC). The relevant observation of the Supreme Court is quoted hereunder :- “2. A plain reading of the sub-section leaves no room for doubt in our mind that the High Court has correctly interpreted it. Indeed, the learned Judges have gone into details, although we in this affirming judgment desire to express ourselves only briefly. Two conditions are necessary to make S. 10 (3) applicable. There must be an industrial dispute existing and such existing dispute must have been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, namely, S. 10 (1). Section 10 stands as a self-contained code