D.D. Gears Ltd. vs Secretary (Labour) And Anr.
2004 Latest Caselaw 178 Del

JUDGMENT

Mukul Mudgal J.

1.This writ petition challenges the order dated 10th February 2000 passed by respondent No.1 Secretary Labour, NCT of Delhi under Section 10(3) of the Industrial Disputes Act (hereinafter referred to as the Act) prohibiting the lock out in the petitioner company as per the provisions of Sections 22 to 24 of the Act. The writ petition also challenges the order of reference dated 10th February 2000 by which the dispute qua payment of wages after 13th January 2000 under Section 10(1)(c) and (d) and Section 12(5) and the general demands of the workman have been referred for adjudication by respondent No.1.

2. The facts urged in the present writ petition by the petitioner are as follows:

(a)The petitioner company was peacefully functioning till 1997 and in 1997, the respondent No.4 which is the Union of the workmen of the petitioner and some other employees indulged in illegal activities which eventually crippled the functioning of the factory of the petitioner. Consequently the petitioner company suffered huge losses and illegal strike by the respondent No.4 Union and the workers was resorted to from 20th March, 1997 to 22nd August, 1997.

(b)On 30th September, 1997, the petitioner wrote to the Assistant Labour Commissioner, complaining of the indiscipline in the factory by the employees. Thereafter correspondence ensued between the parties regarding the demand raised by respondent No.4 and that there were acts of indiscipline including a FIR dated 28th October, 1997. Letters were written by the petitioner on 17th March, 1998 regarding the tool down strike effected by the respondent No.4 Union. Eventually the production in the compandeclined, leading to huge losses and consequently on 2nd April, 1999 the petitioner wrote to the Assistant Labour Commissioner seeking intervention and the permission to retrench the workmen. On 27th October, 1999 the petitioner received a reply from the Assistant Labour Commissioner regarding the general demands raised by the respondent No.4 Union which were replied to on 1st November, 1999 by the petitioner. On 13th December, 1999, an illegal strike was resorted to, assault and gear took place and by a letter dated 18th December, 1999, the Labour Commissioner was apprised of the illegal activities and violence resorted to by the respondent No.4. Similar letters were also written on 6th January, 2000; 7th January, 2000; 10th January, 2000 and 11th January, 2000, the petitioner company gave notice to the workmen advising them to give up their illegal and unjustified strike resorted to since 13th December, 1999 and to start normal production. By letter dated 13th January, 2000 the petitioner informed the Labour Commissioner and by a letter dated 14th January, 2000 had brought to the notice of the Labour Commissioner that the petitioner Company had declared lock-out from 13th January, 2000 due to the misbehavior of the workmen. Similar l titers were also written on 15th January, 2000 to the Labour Commissioner. On 15th January, 2000 the petitioner received a Registered Letter from respondent No.4 Union and contents of that notice was replied to by the petitioner. On 17th January, 2000 a other letter was written, seeking intervention of the Labour Commissioner to reconcile the dispute. On 17th January, 2000 the Labour Conciliation Officer issued a show cause notice to the petitioner regarding the complaint made by the respondent No.4 Union on 13th January, 2000 against the lock-out by the petitioner and sought a reply to the aforesaid show cause notice. The petitioner informed the Labour Commissioner that the lack-out had been declared from 13th January, 2000 due to the actions of the respondent No.4 Union and its members. On 20th January, 2000 the petitioner wrote to the Labour Conciliation Officer regarding an illegal and unjustified strike resorted to by respondent No.4 Union since 13th December, 1999.

(c)Another letter was written by the petitioner to the Labour Commissioner on 24th January, 2000 and on 24th January, 2000 the petitioner received another notice from the Conciliation Officer, stating that it had not appeared on 21st January, 2000 be fore the Conciliation Officer and only filed its reply through post and that letter also noted that on 17th January, 2000 the workers had assured that they will maintain discipline and conduct themselves peacefully. On 25th January, 2000, the petitioner wrote to the Conciliation Officer questioning the assurance given by the workmen in view of their long conduct. On 2nd February, 2000 another letter was written to the Labour Commissioner informing him about the lock-out. Eventually the impugned order, prohibiting the continuance of lock-out, was passed on 10th February, 2000. On the same day another order impugned in this petition under Section 10(3) of the Act, referring the issue of back wages and the general demands of the workmen of the petitioner for adjudication before the Industrial Tribunal, was passed.

3. The case set up by respondent No.4, D.D. Gears Employees' Union, in the counter affidavit is inter alia as follows :

a)that since April 1999, the petitioner company was trying to remove about 156 workers under the garb of retrenchment and had been unsuccessful in this attempt. The application moved by the petitioner under Section 25N of the Act, upon contest was dismissed in May 1999;

b) Another application under Section 25N of the Act was again dismissed and a review thereof was also dismissed in January 2000;

c) The petitioner did not appear and participate in the Conciliation Proceedings despite repeated communications by the Labour Department and is stopped from challenging the orders dated 10th February, 2000.

d)The plea that the workers were on strike since 13th December, 1999 is an after thought as the petitioner had had fully paid the wages up to the month of December 1999 even though a claim has been made that the workers were on strike since 13th December, 1999.

e) No claim regarding strike by the workmen w.e.f. 13th December 1999 was raised before the labour authorities nor conciliation proceedings in respect thereto adopted by the petitioner.

f) The wages from 1st January 2000 to 31st December 2000 have been withheld in spite of the petitioner's assurance by its letter dated 17th February 2000 before the Labour Department.

g) Several of the communications relied upon by the petitioner in the writ petition were not sent and are fabricated as no proof of dispatch or acknowledgment has been filed.

h) The lock out violated Section 23 of the I.D. Act as it was declared when the conciliation proceedings in respect of the general demands raised by the workmen was pending.

i) Similarly the lock out is also illegal as adjudication in I.D. No. 5/2000 was pending when the lock out was declared.

4. The principal plea advanced by the petitioner in its writ petition and its written submissions is that the real dispute in connection with which the lock-out was declared was not referred to adjudication by the appropriate government and thus the impugned under Section 10(3) of the Act, prohibiting continuance of a lock-out is wholly without jurisdiction unless `such dispute' in connection with which lock-out/strike has been declared, has been referred for adjudication. The order under Section 10(3) is sought to be challenged by the petitioner on the ground that the jurisdiction has been attempted to be created for the order under Section 10(3) by the State Government by making a reference for adjudication of matters wholly unconnected with the issues on the basis of which lock-out was declared by the petitioner.

5. Reliance has been placed by the petitioner on Workmen of Edw. Keventers Vs Delhi Administration reported as 1969 2nd Delhi 767 (@ 772) to contend that in order for jurisdiction to be exercised under Section 10(3) of the Act, (a) the industrial dispute referred to had to be in existence on the date of the reference and (b) such a dispute ought to have been referred for adjudication. In my view since the petitioner had admittedly received a notice from the Assistant Labour Commissioner on 27th October, 1999 regarding the general demands raised by the workmen, it is evident that such demands were under conciliation, and thus an industrial dispute and in any event the foundation for the said dispute was in existence. The general demands raised by the workmen pending before the Assistant Labour Commissioner in conciliation along with the entitlement for wages from 13th January 2000 were referred to for adjudication by the order passed under Sections 10(1)(d) and 12(5) of the Act. Thus, both principle laid down by the aforesaid Division bench Judgment for exercise of powers under Section 10(3) relied upon by the petitioner in Workmen of Edward Keeners (supra) were fully satisfied and the petitioner, therefore, cannot seek reliance on the said judgment. The dispute qua the general demand was in existence prior to the reference made on 10th February 2000 and such dispute was referred thus creating the required jurisdiction for the exercise of the power under Section 10(3) of the Act. Accordingly the e is no merit in the plea raised by the petitioner about non-compliance of the provisions of Section 10(3). The petitioner has also placed reliance on ITDC vs. Delhi Administration, reported as 1982 L.I.C. 1309 to contend that the entire dispute must be referred to industrial adjudication and the non-referral of the real dispute vitiates the reference. In my view the petitioner had not sought the existence of the strike and its legality for reference and it cannot, therefore, raise a grievance that he real dispute between the parties had not been referred. Accordingly the aforesaid judgment of this Court does not come to the aid of the petitioner. In any case as observed elsewhere in the judgment it is open to the petitioner to seek a reference on the issue of the existence of strike and its validity sought to be raised now by this petitioner. The petitioner, not having sought such a reference from the government in respect of the strike, cannot thereafter use the non referral of such a dispute for adjudication to contend that real dispute between the parties had not been referred. The petitioner has finally placed reliance on the judgment of the single Judge in Cimmco Birla Limited vs. The State of Delhi and others reported as 2002(II) AD (Delhi) 580. The learned counsel for the petitioner has submitted that in the above case since the lock out was prohibited and only the reference of entitlement of wages was made to the Tribunal, the reference was held to be vitiated as question of exisence or propriety of the lock out was not referred to for adjudication. I am of the view that the applicability of the said judgment depends on the construction of the order of reference under Section 10(1) and the order of prohibition under Section 10(c).

6. The said orders read as follows:

Order under Section 10(1)(c) and 12(5)

O R D E R

No.F.24(503_/2000-Lab. Whereas on a consideration of the report submitted by the Conciliation Officer under section 12(4) of the Industrial Disputes Act, 1947, I, Satish Gathwal, Secretary (Labour), Govt. of the National Capital Territory of Delhi, am satisfied that an industrial dispute in respect of the matters specified in the schedule exists between the management of M/s. D.D. Gears Ltd., A-34, G.T. Karnal Road, Azadpur, Delhi-33 (ii) M/s. D.D. Gears Ltd., 28 Motia Khan, Jhandewalan Road, Delhi-33 and its workmen as represented by D.D. Gears Employees Union, Front A-9, Bada Bagh, Industrial Area, Azadpur, Delhi-33 and that the same should be referred for adjudication to the Industrial Tribunal of Delhi constituted under the said Act.

Now, therefore, in exercise of powers conferred by section 10(1)(c) , 10(1)(d) and 12(5) of the said Act, read with Govt. of India, Ministry of Labour Notification No.S-11011/2/75-DK(IA) dated the 14th April, 1975, I, Satish Gathwal, Delhi, hereby, refer the dispute to the Industrial Tribunal/No.I at present presided over by Shri M.L. Sahni for adjudication.

S C H E D U L E

TERMS OF REFERENCE

Whether the workmen as shown in Annexure `A' are entitled to their wages w.e.f. 13-1-2000 and if so, what directions are necessary in this respect?''

Whether the workmen as shown in Annexure `A' are entitled to Annual Increment and if so at what rate and what directions are necessary in this respect?''

Whether the workmen as shown in Annexure `A' are entitled to House Rent Allowance and if so at what rate and what directions are necessary in this respect?''.

Whether the workmen as shown in Annexure `A'' are entitled to Conveyance Allowance and if so at what rate and what directions are necessary in this respect?''

Whether the workmen as shown in Annexure `A' are entitled to two pair of summer and winter uniforms, one paint coat, two pair of shoes and if so, what directions are necessary in this respect?''

Order under Section 10(3)

''....No.F-24(503)/2000/Lab./5160-69 Dated : 10/2/00

O R D E R

Whereas an Industrial Dispute between the management of M/s. D.D. Gears Ltd., A-34, G.T. Karnal Road, Azadpur, Delhi-33 (ii) M/s. D.D. Gears Ltd., 28 Motia Khan, Jhandewalan Road, New Delhi-55 and its workmen as represented by D.D. Gears Employees Union, Front A-9, Bada Bagh, Industrial Area Azadpur, Delhi-33 has been referred for adjudication to Industrial Tribunal No. I, presided over by Shri M.L. Sahni vide order No.F-24(503)/2000/Lab./5154-59 Dated: 10/2/00

And whereas I am satisfied that a Lock-out has been resorted to by the management w.e.f. 13-1-2000 in respect of the workman whose names appear in Annexure `A' and which is still continuing and since the dispute has been referred for adjudication; theref ore in exercise of the powers conferred by Sub-section 3 of the section 10 of the Industrial Disputes Act, 1947, I, Satish Gathwal, Secretary (Labour), Govt. of the National Capital Territory of Delhi, prohibit the continuance of lock-out forthwith in recpect of the above mentioned workmen of M/s. D.D. Gears Ltd., 28, Motia Khan, Jhandewalan Road, New Delhi-55.

.................

7. The main issue arising in this petition depends upon the interpretation of Sections 23 to 24 of the Act, which read as under:

''23. General prohibition of strikes and lock out:- No workman, who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock out-

a) during the pendency of conciliation proceedings, before a board and seven days after the conclusion of such proceedings.

b) During the pendency of proceedings before (labour Court, Tribunal or National Tribunal) two months after the conclusion of such proceedings;

24. Illegal strikes and lockouts:

1) a strike or lock shall be illegal if:-

i) It has commenced or declared in contravention of section 22 or section 23; or

ii) It is in contravention of an Order made under sub-section (3) of Section 10 (or sub-section (4) (a) of Section 10A.''

The above provisions demonstrate eloquently the legislative intent of prohibition of lock out or strike during the pungency of the adjudication before the Industrial Tribunal. The intention of the legislature was clearly to ensure that during adjudication the industrial climate is not vitiated by strikes/lock outs. This position of law was also laid down by a learned Single Judge of the Andhra Pradesh High Court in A.P. Electrical Equipment Corporation z A.P. Electrical Equipment Corpn. Staff Union, 1987 (1) LLJ 324.

8. On 27th January 1999 the petitioner had admittedly received a notice from the Assistant Labour Officer in respect of the general demands raised by the Union and consequently the plea of the respondent No.4/union that the conciliation proceedings were then pending in respect of the general demands has to be accepted. The general demands were eventually referred for adjudication by respondent No.1, Secretary (Labour), by its impugned order dated 10th February 2000 to the Industrial Tribunal. A bare perusal of the order referring the general demands for adjudication under Section 10(1) clearly shows that it was made pursuant to a failure of conciliation proceedings in which general demands had been raised by the workmen. It is not the petitioner's case that any conciliation proceedings were resorted to or indeed any steps taken by it in writing to seek the adjudication of the legality/existence of a strike. The consequent order making a reference and prohibiting lock out was passed under Section 10(3) of the Act, which read as under:

''10(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.''

9. In my view since respondent No.1 had referred the demands raised by the workman for adjudication vide order dated 10th February 2000, it had the power of prohibiting the continuance of the strikes or lock out in connection with such dispute existing on the date of reference. Accordingly unless and until the petitioner succeeds in his challenge to the order of the reference of the demands raised by respondent No.4 for adjudication as per the order of reference made by respondent No.1, the consequenti l order under Section 10(3) of the Act cannot be challenged. Even otherwise, I am satisfied that since the Industrial Dispute No. 5 of 2000 was pending before the Industrial Tribunal, Delhi, prior to the declaration of the lock out dated 13th January 2000 consequently such lock out is illegal. The petitioner not having sought the reference of the legality/existence of the strike in its establishment for reference cannot seek reliance on the Cimmco judgment (supra) to contend that the non-referral of the real dispute vitiated the reference.

10. The petitioner had further taken a stand that without giving any notice before issuing the order of lock out amounts to violation of principles of natural justice and the prohibition order thus gets vitiated. In my view even in the writ petition it has been stated that the appropriate government had given notices which included the notice dated 17th January 2000 in respect of the prohibition of the lock out declared by the petitioner and this plea accordingly has no merit as the petitioner having cosen to ignore such notices cannot then turn around and complain of violation of principles of natural justice.

11. I am therefore satisfied that the notice dated 17th January 2000 and the petitioner's lack of suitable response thereto shows that the petitioner had decided not to participate in the conciliation proceedings and unilaterally resorted to lock out. It is evident that no grievance can be made by the petitioner on the non referral of the legality of the strike said to be resorted to by the workman. There is justification in the plea of the respondent No.4 that reliance on plea of illegal strike as resorted to by the petitioner only after the issuance of the prohibition order by respondent No.1 as well as the order of reference of the Industrial Dispute raised by respondent No.4. The petitioner had never sought a reference or dispute relating o strike by the workmen as is evident from the fact that such an issue was not raised in the Conciliation Proceedings by it.

12. In view of the stand taken by the respondent No. 4 it is clear that in case the petitioner employer wants to raise an issue of legality and/or existence in respect of any strike said to be resorted to by the workmen it may do so in accordance with law and the dismissal of this writ petition will not come in its way in doing so.

13. Accordingly there is no merit in the writ petition and the same is dismissed.