Case: Engineering Workers Association Vs. Radium Creation Limited & Others

1. Leave granted. 2. This appeal arises out of a judgment and final order dated 03.02.2015 passed by the High Court of Judicature at Bombay whereby Writ Petition No.9196 of 2014 filed by the appellant-Association challenging an order dated 24.07.2014 passed by the Industrial Court, Thane, has been dismissed. 3. A complaint under Section 28 read with Item 6 of Schedule II and Items 9 and 10 of the Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short "the Act")was filed by the appellant-Association before the Industrial Court, Maharashtra at Thane alleging, inter alia, that the respondent-employer was indulging in an unfair labour practise inasmuch as it had imposed an illegal lock out on 202 members of the appellant-Association. The complainant prayed for a declaration to the effect that the respondent-employer had engaged in unfair labour practices within the meaning of Item 6 Schedule II and Items 9 and 10 of Schedule IV of the Act aforementioned besides a direction quashing notice dated 05.07.2014 in regard to the lock-out ordered by it. The appellant-Association further sought a direction to the respondent-employer to allow the workmen concerned to resume their normal duties and to pay their wages and salary in view of the undertaking given by the Association that they would maintain peace and tranquility at the work place.4. The complaint aforementioned was accompanied by an application for grant of an interim relief to the effect that the respondent-company should not give effect to the lock-out and that it should allow the workmen named in the notice to resume their normal duties and that they should be paid wages in view of the undertaking given to the company. That prayer it appears was opposed by the respondent-company and eventually rejected by the Industrial Court by its order dated 24.07.2014. Aggrieved the appellant-Association filed Writ Petition No.9196 of 2014 which as noticed earlier has been dismissed by a Single Judge of the High Court at Bombay, hence the present appeal. 5. When this appeal initially came up for hearing before us on 10.04.2015 we had while issuing notice to the respondents directed the respondent No.1 Company to calculate and deposit in this Court the wages payable to the affected workmen for the period commencing from 01.08.2015 onwards. We had also made it clear that the complaint filed by the appellant-Association would in the meantime proceed as we had not stayed the proceedings before the Industrial Court. When the matter again came up on 27.07.2015, Mr. C.U. Singh, learned senior counsel appearing on behalf of the respondent-company submitted on instruction that the respondent-company was ready to lift the lock out qua 150 out of a total 202 workmen named in the list accompanying the lock out notice. He further submitted that the respondent-company was ready and willing to transfer such of the workmen as may choose to opt for such transfer at Chamboor which according to Mr. C.U. Singh was nearer to the place where the respondent-workmen were residing. Ms. Indu Malhotra, learned counsel for the appellant had however sought time to take instructions whether any workmen out of those mentioned in the list were ready and willing to get transferred to the factory at Chamboor. 6. When the matter came up for hearing today we are told by learned counsel for the parties that the respondent-company has in compliance with our direction dated 10.04.2015 deposited a sum of L 1,40,32,249/- towards the wages payable to the affected workmen with effect from 01.08.2014 upto 30.04.2015. No deposit for the period commencing from 01.05.2015 upto 14.08.2015 when the lock-out was lifted qua 150 workmen has however been deposited. It is also stated that 12 out of 52 workmen had already resigned and left the employment of the respondent-company while regarding the remaining 40 workmen the lock out was lifted on 01.09.2015. It is further pointed out by him that these 40 workmen have been separately charge-sheeted and suspended pending a domestic inquiry which the respondent-company proposed to initiate against them. 7. Ms. Indu Malhotra, learned counsel appearing for the appellant-Association submitted that according to her instructions no workman has resigned from the service of the company as stated by learned senior counsel for the respondent-company. She further pointed out that the First Information Report regarding the alleged commission of offences by the agitating workmen was only qua 15 workmen, 13 of whom were women while the remaining two were men. The respondent-company has according to Ms. Malhotra with passage of time widened the net to include a larger number of workmen only to browbeat the workmen and make them succumb to the pressure of employer-company. 8. The short question that falls for determination is whether with the lifting of the lock out the affected workmen are entitled to receive their wages for the period they were locked out. On behalf of the respondent-company, Mr. Singh, strenuously argued that the entitlement of the workmen to receive wages for the said period would depend upon whether the lock-out was legal and justified or illegal and unjustified. That finding according to Mr. Singh has not so far been recorded by the Industrial Court. Any payment of wages has therefore to await such a finding from the competent forum. Reliance in support was placed by the learned counsel upon the decisions of this Court in Syndicate Bank & Ors. v. K. Umesh Nayak [1995(1) S.C.T. 25 : (1994) 5 SCC 572 ] and HAL Employees Union v. Presiding Officer & Anr. [1996(3) S.C.T. 618 : (1996) 4 SCC 223 ]. It was argued that in light of the prima facie findings recorded by the Industrial Court that the lock-out was legal and justified, there is no room for release of any wages out of the amount deposited by the respondent-company before this Court. 9. On behalf of the appellant-Association it was on the other hand submitted that the lock-out was prima facie illegal inasmuch as the same was indefinite hence legally impermissible. It was also submitted that the respondent-company has adopted a vindictive attitude towards not only those allegedly agitating for enforcement of their rights but also taken other steps in connection with the incident which formed the subject matter of the report lodged with the police. The fact that the report was lodged qua 15 workmen only, 13 of whom were women, clearly shows that the decision of the management to suspend and charge 25 more workmen is not only vindictive but callous as well. It was also submitted that the lock-out was lifted by the respondent-company only when this Court directed deposit of the wages payable to the affected workmen. The lock-out ordered by the respondent-company as also its lifting was in that view mala fide according to the learned counsel, which aspect ought to be kept in view while directing release of the amount deposited in this Court. She further argued that in order to allay any apprehension about the amount not being payable to the workmen concerned and yet being received by them on the direction of this Court the workmen concerned would be ready and willing to file an affidavit and undertaking before the concerned Industrial Court to the effect that in case the finding finally is to the effect that the lock-out was justified, the amount so received for the period during which the workmen remained out of job shall be refunded to the employer. 10. We have given our anxious consideration to the submissions made at the bar. The limited issue as already seen above is whether the amount deposited by the respondent-company can be released in favour of the workman concerned. It is true that the workmen have suffered lock-out for nearly one year and may have been put to great hardship on that account but it is equally true that their entitlement to the benefits would depend upon whether the lock out was legally valid and justified. That finding has yet to be recorded by the Industrial Court.11. The question then is whether it is just and proper to direct disbursement of the entire amount that has been deposited or any part of it pending such a finding and if so the condition on which such payment can be made. Having given our anxious consideration to the rival submissions made before us we are of the view that interest of justice would be sufficiently served if the affected workmen except those who have either resigned from the service of the respondent company as alleged by Mr. Singh or who are charged and are facing domestic inquiry should be paid 50% of the wages due to them for the lock out period. The amount deposited by the respondent-company in this Court shall for that purpose stand transferred to the Industrial Court, Thane, which shall utilise the same for disbursement in terms of the above. The release in favour of the workmen shall however be subject to the condition that each one of them files before the Industrial Court an undertaking to the effect that in case the said court records a finding that the lock-out was legal or justified and that finding is finally upheld by the appellate/revisional authorities the amount so received shall be refunded back to the company.12. As regards the 40 workmen qua whom the lock-out stands withdrawn but who are facing the disciplinary proceedings, we leave it to the Industrial Court to examine whether any payment of wages can be made in their favour also by way of an interim direction. In case the Industrial Tribunal comes to the conclusion that such a payment deserves to be made, the Industrial Court shall do the needful by utilising the amount already in deposit. The excess if any remaining unutilised shall be invested in a fixed term deposit. The Industrial Court shall also be free to direct further deposit by the company in case of shortfall to enable it to make the payment of such wages as the Industrial Court may consider just and proper.

Decision reasoning: 1[ds]10. We have given our anxious consideration to the submissions made at the bar. Thelimited issue as already seen above is whether the amount deposited by thecan be released in favour of the workman concerned.It is true that the workmen have sufferedfor nearly one year and may have been put to great hardship on that account but it is equally true that their entitlement to the benefits would depend upon whether the lock out was legally valid and justified. That finding has yet to be recorded by the Industrial Court.11.The question then is whether it is just and proper to direct disbursement of the entire amount that has been deposited or any part of it pending such a finding and if so the condition on which such payment can be made.Having given our anxious consideration to the rival submissions made before us we are of the view that interest of justice would be sufficiently served if the affected workmen except those who have either resigned from the service of the respondent company as alleged by Mr. Singh or who are charged and are facing domestic inquiry should be paid 50% of the wages due to them for the lock out period. The amount deposited by thein this Court shall for that purpose stand transferred to the Industrial Court, Thane, which shall utilise the same for disbursement in terms of the above. The release in favour of the workmen shall however be subject to the condition that each one of them files before the Industrial Court an undertaking to the effect that in case the said court records a finding that thewas legal or justified and that finding is finally upheld by the appellate/revisional authorities the amount so received shall be refunded back to the company.12. As regards the 40 workmen qua whom thestands withdrawn but who are facing the disciplinary proceedings, we leave it to the Industrial Court to examine whether any payment of wages can be made in their favour also by way of an interim direction. In case the Industrial Tribunal comes to the conclusion that such a payment deserves to be made, the Industrial Court shall do the needful by utilising the amount already in deposit. The excess if any remaining unutilised shall be invested in a fixed term deposit. The Industrial Court shall also be free to direct further deposit by the company in case of shortfall to enable it to make the payment of such wages as the Industrial Court may consider just and proper.