Karnataka High Court
The Management Of vs Karnataka Wokers Union on 16 December, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.15150 OF 2020 (L-RES)
BETWEEN:
THE MANAGEMENT OF
M/S. MIVIN ENGINEERING TECHNOLOGIES
PVT. LTD., NO.81 & 82
HEJJALA VILLAGE, BIDADI HOBLI,
RAMANAGARA DISTRICT - 562 109
REPRESENTED BY ITS MANAGER - HR & IR
MR. RAMPRASAD B.S.
...PETITIONER
(BY SRI. PRADEEP KUMAR J., ADVOCATE)
AND:
KARNATAKA WORKERS UNION
REPRESENTED BY ITS
GENERAL SECRETARY
CITU OFFICE, V.G. GOPAL BUILDING
NO.20/1, LALBAGH FORT ROAD
BENGALURU - 560 004.
...RESPONDENT
(BY SRI. V.S. NAIK, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
APPROPRIATE NATURE SETTING ASIDE THE AWARD DATED
12.11.2019 PASSED BY THE ADDITIONAL INDUSTRIAL
TRIBUNAL, BENGALURU IN A.I.D. NO.33/2018 AS PER
ANNEXURE-O.
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THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING FOR PRONOUNCEMENT OF ORDER THIS DAY,
E.S. INDIRESH J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
CAV ORDER
(PER: HON'BLE MR. JUSTICE E.S.INDIRESH)
1. This writ petition is filed by the petitioner-Management
challenging the award dated 12.11.2019 in A.I.D.
No.33/2018(Annexure-O) passed by the Additional Industrial
Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal'),
allowing the claim petition.
2. For the sake of convenience, parties are referred to as per
their status before the Tribunal.
3. It is the case of the First Party that, the Second Party has
employed more than hundred workmen in different capacities
and the First Party - Union is registered and all the workmen are
the Members of the Union. It is further stated in the claim
petition that a settlement was existing in so far as the demands
made by the First Party and the said settlement expired on
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31.12.2014. The First Party - Union has submitted new Charter
of Demands, however, the Second Party - Management has not
favoured for negotiations in so far as the Charter of Demands is
concerned and as such, the dispute has reached the Conciliation
Officer. It is also stated that even before the Conciliation Officer
no settlement was arrived at between the First Party and the
Second Party and as such, the matter was referred to the Labour
Court for adjudication. It is further stated in the claim petition
that the Second Party - Management without considering the
Charter of Demands made by the First Party - Union, altered the
wages of the workmen arbitrarily and unfair action has been
taken by the Second Party - Management to victimise the Office
Bearers of the First Party - Union, resulting in strained
relationship between the First Party and the Second Party. It is
further stated in the Writ Petition that the Second Party -
Management, illegally issued the order of lockout from
28.09.2015 and the Second Party - Management has linked the
issue of Charter of Demands for declaring lockout without issuing
prior notice to the First Party - Union. It is further stated in the
claim petition that the employees did not involve in strike as
alleged by the Second Party as alleged on 05.09.2015 and as
such, the employees were also not on duty on 22.09.2015 and
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further, not tried to barge inside the factory as alleged by the
Second Party - Management and on the other hand, the H.R.
Manager and the Plant Manager tried to mislead the employees
on the issue of Charter of Demands and therefore, there was
partial settlement with regard to lifting the lockout as per notice
dated 28.09.2015 and a settlement was entered into between
the First Party and Second Party on 28.10.2015, and as such,
the Second Party - Management has made a settlement with the
First Party - Union in so far as the Charter of Demands is
concerned and further the Second Party - Management has
taken back the civil suits filed against the First Party - Union. It
is the case of the First Party that the declaration of lockout by
Second Party - Management with effect from 28.09.2015 to
29.10.2015 is illegal and the Second Party - Management is
bound to pay full wages to the employees for the period of
lockout and as such, First Party has approached the Government
to refer the matter for adjudication and accordingly, the
Government of Karnataka, by order dated 02.04.2018 referred
the dispute to the Industrial Tribunal under Section 10(1)(c)(d)
of the Industrial Disputes Act, 1947 (hereinafter referred to as
'the Act'), and same came to be registered in A.I.D. No.33/2018.
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4. On service of notice the Second Party entered appearance
and filed detailed statement of objections and contended that,
the First Party - Union indulged in violence and illegal strike,
slow down, illegal go-slow etc. and accordingly, sought for
dismissal of the claim statement. The points for reference was
extracted at paragraph 5 of the impugned Award and in order to
establish their case, the President of the First Party was
examined as WW-1 and produced documents and same were
marked as Exs.W1 to W10. Second Party - Management has
examined one witness as MW-1 and produced documents which
were marked as Exs.M1 to M35. The Tribunal after considering
the material on record vide Award dated 12.11.2019, allowed
the claim petition and held that the workers of the First Party -
Union are entitled for full wages for the period from 28.09.2015
to 28.10.2015 and declared that the lockout is illegal. Being
aggrieved by the same, the Second Party has preferred this Writ
Petition.
5. I have heard Sri. J. Pradeep Kumar, learned counsel for
the petitioner and Sri. V.S. Naik, learned counsel appearing for
the respondent and perused the writ papers.
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6. Sri. J. Pradeep Kumar, learned counsel appearing for the
petitioner, invited the attention of the Court to the finding
recorded by the Tribunal at paragraph 24 of the impugned Award
and contended that, the Tribunal was misguided with the
provisions contained under Section 22 of the Act and in this
regard, by referring to Section 2(n) of the Act, petitioner has
contended that, the petitioner being a private limited company
and therefore, Section 22 of the Act is not applicable to the facts
on record and as such, sought for interference of this Court. It
is also contended by the learned counsel for the petitioner that
the respondent - Union indulge in illegal activities to barge into
the premises and have assaulted the security guard - Darshan
A.R. and in this regard, complaint was lodged by him to the
jurisdictional police and same was registered as Crime
No.338/2015 before the Bidadi Police Station and therefore, it is
contended that, the finding recorded by the Tribunal requires
interference by this Court.
7. It is also contended by the learned counsel appearing for
the petitioner that, the lockout notice was issued on 27.09.2015
(Annexure-G) whereby, the respondent - workmen have
deliberately slowed down the work, resulting in huge loss to the
petitioner - Management and also requested the Conciliation
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Officer for early settlement of dispute with the respondent -
Union as per Annexure-E and as the Members of the respondent
- Union, indulging in barging into the premises of the Unit and
assaulting the security guard and therefore, the petitioner -
Management was constrained to issue lockout notice in respect
of the petitioner - Establishment.
8. Per contra, Sri. V.S. Naik, learned counsel appearing for
the respondent, invited the attention of the Court to the scheme
of Section 12 of the Act and submitted that the dispute was
pending consideration before the Conciliation Officer and at that
stage, the petitioner - Management resorted to issue the lockout
notice and as such, the action of the petitioner - Management
was considered by the Tribunal in detail and accordingly, sought
to justify the impugned Award. It is further contended by the
learned counsel for the respondent that the petitioner has not
challenged the order of reference made by the Government and
further referring to the reference question as set out at
paragraph 5 of the impugned Award, he argued that, the
petitioner - Management has illegally closed the Establishment
and the same has remained unchallenged. It is also the
submission of the learned counsel for the respondent that
though the allegation has been made against the Members of the
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respondent - Union and criminal proceedings are lodged against
the Members of the respondent - Union in Crime No.338/2015
before the Bidadi Police Station, however, the said Security
Guard - Darshan A.R., who was a complainant, was not
examined nor the Supervisors in the Security Section have been
examined by the Second Party and therefore, the finding
recorded by the Tribunal is just and proper. Lastly, it is
contended by the learned counsel for the respondent that, this
Court is having limited jurisdiction to interfere with the finding of
fact recorded by the Tribunal and as such, places reliance on the
Judgment of the Hon'ble Supreme Court in the case of INDIAN
OVERSEAS BANK Vs. I.O.B. STAFF CANTEEN WORKERS' UNION
AND ANOTHER reported in (2000) 4 SCC 245 and contended
that, a General Prohibition of Lockout as provided under Section
23 of the Act attracts in the circumstances of the case and
accordingly, sought for dismissal of the Writ Petition.
9. In the light of the submissions made by the learned
counsel appearing for the parties, on careful examination of the
writ papers would indicate that the Second Party is a company
engaged in the manufacture of tractor pumps, is a Private
Limited Company. In view of the arguments advanced by the
learned counsel for the petitioner, Section 22 of the Act provides
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for prohibition of strikes and lockouts in a public utility service
and Section 2(n) of the Act provides for definition for 'public
utility service' which reads as under:
"public utility service" means-
(i)any railway service or any transport service for the
carriage of passengers or goods by air;
(ia) any service in, or in connection with the working
of, any major port or dock;
(ii)any section of an industrial establishment, on the
working of which the safety of the establishment or
the workmen employed therein depends;
(iii)any postal, telegraph or telephone service;
(iv)any industry which supplies power, light or water
to the public;
(v)any system of public conservancy or sanitation;
(vi)any industry specified in the First Schedule which
the appropriate Government may, if satisfied that
public emergency or public interest so requires, by
notification in the Official Gazette, declare to be a
public utility service for the purposes of this Act, for
such period as may be specified in the notification:
Provided that the period so specified shall not, in the
first instance, exceed six months but may, by a like
notification, be extended from time to time, by any
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period not exceeding six months, at any one time, if
in the opinion of the appropriate Government, public
emergency or public interest requires such
extension;
Having taken note of the provisions under Section 2(n)
read with Section 22 of the Act, makes it clear that the said
provision of strikes and lockouts are applicable to the
Establishment referred to as 'public utility' and therefore, as the
petitioner - Establishment is not a 'public utility' in nature, the
finding recorded by the Tribunal at paragraph 24 is not correct
and liable to be interfered with in this Petition.
10. It is the case of the petitioner that, the petitioner -
Company is a private company and therefore, the finding
recorded by the Tribunal is without considering the definition
contemplated under Section 2(n) of the Act and as such, the
petitioner - company is not a public utility service under the Act
and therefore, I find force in the submission made by the
learned counsel appearing for the petitioner. It is also to be
noted that, since the entire discussion made by the Tribunal is
based on the ground that the petitioner / Second Party is a
public utility service, the impugned order requires to be set
aside. It is also pertinent to mention here that the Tribunal at
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paragraph 33 of the impugned Award observed that, the Second
Party - Management has not made efforts to examine the
Security Guard - Darshan A.R. and therefore rejected the
defence taken by the Second Party. The said finding recorded by
the Tribunal cannot be considered as a sole factor to reject the
defence of the Second Party - Management and the Tribunal
ought to have considered the reasons for declaration of lockout
as contended by the Second Party in the documents referred to,
particularly with regard to the notice dated 27.09.2015
(Annexure-G) and therefore, I find force in the submission made
by the learned counsel appearing for the petitioner.
11. It is also pertinent to mention here that, on perusal of the
order of reference, as set out in paragraph 5 of the impugned
Award, reasons for issuance of the lockout notice has to be
proved before the Tribunal to consider whether the same is legal
or otherwise under the Act and therefore, the submission made
by the learned counsel appearing for the respondent cannot be
accepted. It is to be noted that, it is the duty of the Tribunal to
assess the material on record and to arrive at a conclusion
whether the lockout is legal or not and as such, the said finding
recorded in the impugned Award requires to be set aside.
Perusal of the finding at paragraph 11 of the impugned order,
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makes it clear that the Tribunal erroneously arrived at a
conclusion that the reference order has not been questioned with
regard to the declaration of lockout which is totally misconceived
by the Tribunal and therefore, it is a fit case to remit the matter
to the Tribunal for fresh disposal taking into account the factual
aspects on record in the right perspective. That apart, at
paragraph 7 of the claim petition, the respondent raised a plea
about the reference to be answered by the Tribunal. In addition
to this, it cannot be doubted that the lockout notice as per
Annexure-F series are issued by the petitioner - Management in
respect of 'wilful insubordination' by the respondent - workmen.
In view of the observation made above, as the impugned Award
passed by the Tribunal is patently erroneous and as such, this
Court is required to interfere with the finding of fact as the
Tribunal has misconstrued the fact with regard to application of
Section 22 of the Act as well as the conclusion at paragraph 11
of the impugned Award and therefore, the Judgment referred to
by the learned counsel appearing for the respondent in INDIAN
OVERSEAS BANK (supra) is not applicable to the facts on hand
as the findings recorded by the Tribunal are contrary to law and
factual aspect on record.
12. In the result, I pass the following:
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ORDER
(i) Writ Petition is allowed.
(ii) Award dated 12.11.2019 in AID No.33/2018
(Annexure-O) passed by the Additional Industrial Tribunal, Bangalore, is hereby set aside and the matter is remitted to the Industrial Tribunal for fresh consideration in terms of the observation made above.
(iii) Since the parties are represented through their learned counsel and in order to avoid further delay in the matter, parties are directed to appear before the Additional Industrial Tribunal, Bangalore, on 13.01.2025 at 11.00 a.m. without waiting for notice. On their appearance, Tribunal is requested to dispose of the petition at the earliest, in accordance with law.
SD/-
(E.S.INDIRESH) JUDGE sac