Case: Maharashtra General Kamgar Union, Bombay Vs. Solid Containers Limited and Others

2. The first respondent is a limited company engaged in manufacture of containers and allied products. The present management has taken over the company sometime in the year 1983. The lis which has led to the filing of the present Letters Patent Appeal commenced sometime in 1985. On 24th of October, 1985 the respondent company filed an application before the Government under Section 25(O) of the Industrial Disputes Act for closure. By an order passed by the Government on the 18th of December, 1985 that application came to be rejected. This was followed by certain notices being issued by the first respondent alleging violence on the part of the workers. On 26th of December, 1985 the respondent issued a notice alleging inter alia that various notices had been issued advising the workmen to maintain discipline and not to indulge in unlawful activities. The workmen have, however, not paid any heed and have continued committing acts of indiscipline and have been intensifying the same day to day. The workers have become more hostile and aggressive and have started humiliating and hurling threats openly on the personnel of the company of dire consequences without any provocation. They are also threatening to damage the companys properties. The notice has further gone on to state that on the date of the notice, workmen gheraoed S/Shri R. K. Barot, the Maintenance Manger and Satyapal Goel, the Store keeper. They declared that they would not lift the Gherao till assurances were given to them as to when they would be paid their wages. The two officers were humiliated, insulted, intimidated and abused in most vulgar and filthy language. The officers were threatened that none of the officers of the company would be allowed to enter the factory premises. If any officer dared to come inside the factory he would have to face dire consequences. By the violent and hostile activities workers have created tension and panic in the minds of officers and all officers are afraid to come inside the factory premises. The workmen are keeping the situation on the factory premises surcharged with tension3. A further notice dated the 28th of December, 1985 was issued by they alleging that the workmen have taken over the reign of the entire factory. There is no law and order inside the factory premises. They are not obeying the directions of the security personnel. Yet, a further notice dated the 31st of December 1985 is issued alleging violent activities on the part of the workmen on the 25th and 26th December, 1985. It was further alleged that the situation in and around the factory was very tense and that the workers have determined to assault the officers whosoever came in the factory. On 31st December, 1985, some of the officers could enter into the factory premises only in the presence of police. Apprehending grave danger to life and property the Chairman of the company rushed to the factory in the presence of the police. The Chairman tried to pacify the workmen explaining them the financial crisis being faced by the Company and the paucity of funds. The explanations and persuasions of the Chairman, however, have gone in vain. A further notice dated the 2nd January, 1986 containing similar allegations was also issued4. On the 7th of January, 1986 the Respondent Company issued a notice ofwith effect from the 21st of January, 1986. The notice is accompanied by an annexure containing statement of reasons for effecting theThe reasons inter alia point out that the present management had taken over the company in October, 1983 with a hope that it would be able to make it economically viable. It has invested a sum of Rs. 1 crore for the purpose. The company, however, continued incurring huge losses. The management, therefore, vide its application dated 24th of October, 1985, applied for closure. The workers instead of extending their hands of, started indulging in grave and serious acts of misconduct. They did not pay heed to the personal persuasions and explanation and advice but continued to intensify their unlawful activities. A reference is made to the aforesaid notices issued and to the incidents mentioned in the said notices. It further recited that on the 1st of January, 1986 none of the officers could come to the factory because of apprehension of danger to their lives. On that day itself someone put fire inside the mill board division near the Pulper where raw material is stored with an intention to put the entire factory on fire. It was planned that the fire should intensify after the workers had left the factory at about 4.00 p. m. so that nobody should remain present to help in extinguishing the fire. Fortunately, the fire was noticed at about 2.50 p. m. and the same was immediately brought under control and the factory was saved from being engulfed in fire and reduced to ashes. The threats of damages are, thus, executed by the workmen. Not being contained, workers are giving open threats of assault and further damage to companys properties. On 6th of January, 1986 there was internal clashes and fights amongst the workers creating a lot of problems. In the circumstances, it has been decided to effectwith effect from 21st January, 1986. The workers were advised not to return during the notice period as they will be treated as on duty and would be entitled for wages during the notice period5. On 18th June, 1986 the appellant union filed a complaint being Complaint (ULP) No. 189 of 1986, in the Industrial Court at Thane alleging that they has committed offences under Item 6 ofI and Items 9 and 10 ofV of the M. R. T. U. and P. U. L. P. Act, 1971. The complaint is filed beyond the period of 90 days after closure was effected by the. In the complaint, the Appellant alleged that thea sequel to the permission for closure having been rejected by the Government. Theis challenged on grounds inter alia that the notice ofnot served on each and every employee. The reasons alleged in thenotice are totally false, baseless and devoid of material particulars and truth. The reasons are not bona fide. The allegations in the notice ofare denied and the respondents are put to the strict proof of the same. As far as the prayer for condonation of delay, in filing the complaint, is concerned, the appellant submitted that since the employees were not given individualnotices they did not know the reasons for theand, therefore, could not approach the Court in time. Thenotice, which was sent to the appellant Union, was unfortunately misplaced in the office and the same mingled in some other files. On a search being made the same was traced on the 6th of May, 1986. A reply to the said notice was sent on the very day calling upon the respondent to lift theA further time up to the 18th of June, 1986 was taken in giving instructions to the Advocates6. The Respondent Company, on 20th January, 1987, filed its written statement. Pending the complaint, a settlement dated the 15th of April, 1987 was arrived at between substantial number of workers and the respondent company. Under the settlement 190 workers were permitted to rejoin the company after they had given an undertaking of good behaviour. Hence, the aforesaid workers resumed duties and thein so far as they are concerned, was lifted with effect from the 27th of April, 1987. This has left only 27 workers who have not chosen to sign the undertaking and hence they have not been permitted to join duties. The said 27 workers are represented by the Appellant union who, on the 8th of July, 1987, filed a second complaint being Complaint (ULP) No. 220 of 1987 of the Industrial Court, Thane. The complaint alleges offences under items 1, 4 and 6 ofI and Items 9 and 10 ofV of the M. R. T. U. and P. U. L. P. Act, 1971. In substance the complaint of the Appellant in the second complaint is that the demand by the respondent for the company, of the undertaking, from the workers, by way of a condition precedent for permitting them to join duties, is illegal, improper,w and mala fide and in gross violation of various provisions of the Industrial Law and of service conditions of employees as well as of model standing orders etc7. By a judgment and order passed on the 18th of January, 1988, the aforesaid second complaint being Complaint (ULP) No. 220 of 1987 has come to be dismissed as not being maintainable as the cause of action of the second complaint was the subject matter of the first complaint being Complaint (ULP) No. 189 of 1986. The Appellant has not chosen to challenge the aforesaid Judgment and Order of the 18th of January, 1988 and hence the dismissal of the second complaint has become final8. By a Judgment and Order dated the 18th of September, 1989 the first complaint, being Complaint (ULP) No. 189 of 1986, is also dismissed. By the said order, delay in filing the complaint, is condoned. The, it is held, cannot be deemed to be illegal and hence no offence can be said to have been made out under Item 6 ofI and Items 9 and 10 ofV of the MRTU and PULP Act, 1971. Taking exception to the aforesaid findings and the consequent dismissal of the complaint, the Appellant preferred, in this Court, a Writ Petition bearing Writ Petition No. 252 of 1990. By an order passed on 24th of April, 1990, by a learned single Judge S. W. Puranik, J. the petition is summarily rejected. The contention put forth on behalf of the appellant that the Tribunal should have assessed the truth or otherwise of the statement of reasons appended to the notice of, is rejected by observing that, while exercising jurisdiction under the M. R. T. U. and P. U. L. P. Act, 1971 the Court has only to be guided by definition of illegal as stated in section 24(2) of the Act. In the instant case, the Court found that ther had followed the prescribed form, reasons and procedure within the stipulated time and as such the declaration oflegal. Having so held, the other alleged unfair labour practices do not survive for consideration inasmuch as those would come up only if theheld to be illegal, holding that there exist no reason to interfere, the learned single Judge has proceeded to reject the petition. Taking exception to the aforesaid summary rejection of the Writ Petition then has preferred the present Letters Patent Appeal.

Reasoning: and strikes are concerned,can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, ais a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The main object of notice of 14 days beforeor strike is to avoid possible dislocation to the employers and their workmen and give some breathing time to adjust. It is not that the law does not permit the employers to resort toin the same manner as the workmen are entitled to use the weapon of strike for achieving their objects. The contemplated notice under section 24 firstly operates as a warning to the employees that the employer cannot make any further concession and gives an opportunity to them to reconsider their strategy by weighing the reasonableness of their claim as also their overall strength and capacity to endure suffering involved. Secondly, such notice enables them to make necessary adjustments to face impending unemployment in the event of their determination to fight. Thirdly, it also gives an opportunity to those interested in industrial peace, including the Government machinery in this behalf, to make moves for ironing out some settlementUnder Rule 23 of the M. R. T. U. and P. U. L. P. Rules, 1975 the notice ofis required to be given inJ and is required to be sent by registered post. The notice is required to be accompanied by an annexure containing a statement of reasons. Thus, all that a Court is required to determine is as to whether the management has given the requisite notice in the prescribed form accompanied by an annexure containing the reasons for clamping aThe further inquiry which is required to be made, is whether thehas or has not been commenced within the 14 days notice period. These are the parameters of the inquiry. Once it is found that the requisite notice in the prescribed form has been given and that notice is accompanied by an annexure containing the reasons for thehas not been commenced prior the notice period of 14 days, the inquiry is complete. On the aforesaid findings being given the only conclusion that follows is that theis not illegal and hence no offence can be said to have been committed under Item 6 of Schedule II of the Act. The Court, in proceeding under the Act, is, therefore, not required or in other words it is not open to the Court to go into the truth or otherwise or the justification or otherwise of the reasons which have led the management to clamp aThe enquiry is beyond the scope and ambit of the relevant provisions of the Act. If a Court were to find that theis illegal, it will make a declaration not that effect. It is only after the management fails to lift the illegalwithin a period of 48 hours that undern (5) of section 25 thewill be deemed to be an illegalonly in such a case that the provisions of Item 6 of Schedule II will come into operation. The said item provides that proposing or continuing adeemed to be illegal under this Act is made an unfair labour practice on the part of employers. The aforesaid provision, therefore, does not contemplate an inquiry into the justification or otherwise of the reasons which have led to the clamping of aThat does not form part of the inquiry under the M. R. T. U. and P. U. L. P. Act, 197119. Since it has been a consistent endeavour on the part of Shri Deshmukh to contend that the Tribunal ought to have gone into the justification or otherwise of theand that it was not justified in not doing so, we were taken through the relevant material and evidence on record relation to the justification or otherwise of theWe have noticed that after the application of the respondent for closure under Section 25(O) of the Industrial Disputes Act was dismissed, several notices were issued by the respondent alleging serious misconduct on the part of the workers. We have reproduced the gist of some of the notices in the preceding paragraphs. After the notices, the first respondent, on the 7th January, 1986, has issued its notice ofhas given reasons for issuing the notice ofDespite the earlier notices alleging violence on the part of the workers and the notice ofdated 7th of January, 1986, no reply had been sent by the Appellant for a considerable period. It is only on the 6th of May, 1986, which is after a long gap of four months, that a reply denying the allegations is sent. The present complaint is also belatedly filed on the 18th of June, 1986 which is beyond the period of limitation of 90 days. Notices of 26th of December, 1985 and thereafter are not notices of insignificant nature. They contain serious allegations of misconduct and violence. The notices have gone unreplied. Inaction on the part of Appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice ofdated 7th of January 1986. Though the notice contains serious allegations there is no immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an afterhought. Similar is the case in respect of the complaint, which is filed after over five months from the date of the notice ofBy way of explaining the delay, it is stated that thenotices were not individually served on the workers and hence the employees did not know the reasons of thenotice, which is served upon the, the same, it is alleged, was misplaced as it got mingled with some other files. On search it was found on 6th of May, 1986 and, thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In our view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so callously and casually. In the circumstances, we are inclined to hold that there is a grain of truth in the allegations contained in the notices21. In our view, though it is not necessary or for that matter it is not open to a Court to go into the justification of the reasons for effecting a, even if one were to go into the issue, as Shri Deshmukh wants us to do, there is sufficient material on record to come to a conclusion that there existed sufficient and cogent reasons for effecting aIn the circumstances, we hold that thedeclared by the first respondent company is not illegal. If the same is not illegal the question of its being deemed illegal does not arise. With this finding it would ordinarily have been enough for the disposal of the Letters Patent Appeal. The finding of the Tribunal that no offence is made out under Schedule II, Item 6 and Schedule IV. Items 9 and 10 deserves to be upheld. Similarly, the dismissal of the complaint also deserves to be confirmed. We, however, are dealing with the other two issues as the learned counsel appearing for the contending parties have addressed us on those issues at considerable lengthThe second question, as to whether the firsty was justified in insisting upon its workers to execute an undertaking of god behaviour and diligent work by way of condition precedent for lifting thestrictly speaking, is not an issue which arises in the present complaint bearing Complaint (ULP) No. 189 of 1986. The said issue squarely arose in the second complaint bearing Complaint (ULP) No. 220 of 1987. That, however, came to be dismissed on 18th of January, 1988. The dismissal, no doubt, was not on merits but was on the maintainability of the complaint. May be, the order was not justified, however, appellant has not taken an exception to the dismissal of the complaint and that dismissal has become final. As far as the present complaint (ULP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the22. We have already found that the allegations which are contained in the notice ofand the notices that have preceded the same, are wellt on the material on record. If this be the case, in our judgment, the insistence on the part of the management on giving of an undertaking, as has been done in the present case, cannot be said to be unjustified and, therefore, cannot be faulted24. If the ratio of the above case is applied to the facts of the present case, the inference is irresistible that the insistence on the part of the respondent on the workers to sign an undertaking before they are permitted to resume duties, cannot be said to be unjustified. As far as the majority of workers are concerned, they have settled with the respondent and have resumed duty after signing the requisite undertaking. The question that really arises is, whether the denial on the part of 27 workers in executing the undertaking even in the form, which is reproduced above can be said to be justified. If the insistence on the part of the respondent is to be held to be justified, the refusal to give the undertaking by the minority of the workers, who owe allegiance to the, has to be termed as unreasonable26. We have given our anxious consideration to the above decision and we find that the same was a decision based on facts of that particular case. In paragraph 16, it has been emphasised that there is nothing on record and nothing was brought on record by the respondent in this regard to show that act of violence and acts of indiscipline made the respondent company to insist upon the undertaking of the type involved in this case. This however, is not the case in the case at hand. We have, on facts found that the workers have been guilty of acts of violence and indiscipline causing harm to the officers of the first respondent company and causing damage to the property. Hence, on facts of the present case, we have no hesitation in holding that the insistence on the part of the first respondent company, in taking an undertaking is fully justified29. In view of the aforesaid decisions we answer the second question in the affirmative and hold that the first respondent company was justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the