Delhi District Court
Criminal Case/23/2002 on 19 February, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.23/02
The workman
Sh. K.Shiv Balan and others
represented through Concor Employees Union
3, V.P.House, Rafi Marg, New Delhi.
The Management
M/s Container Corporation of India,
Kanishka Office Plaza,
Ashok Road, New Delhi.
AWARD
1.Workmen had raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal for adjudication in the following terms:-
''Whether the workmen whose names appear in Annexure A were on strike during the period of 7.12.98 to 15.12.98 or the management had resorted to lock out and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/ Govt notifications and to what other relief are they entitled and what directions are necessary in this respect ?''
2. Notice of reference was issued to both the parties.
Workmen appeared and filed statement of claim alleging 2 that Union submitted a charter of demands dated 27.11.1998 espoused by the workmen but this was not liked by the managed. It is alleged that management was looking for appropriate time to victimize the union minded workmen, therefore, managed started coercing the workmen to give in writing that they did not subscribe to the union and when they did not do so, they were turned out from the establishment w.e.f. 7.12.1998. Management is alleged to have employed contractors to perform the work which workmen were doing which amounted to illegal lockout by the management. It is alleged that workmen had been daily reporting for their duties but they were not allowed to enter the premises of the management. Workmen had been protesting against the act of the management through telegrams and letters but all in vain, therefore, Union raised conciliation proceedings on 9.12.1998 and it was only thereafter that management took back the workers on their duties w.e.f. 15.12.1998, however, management subsequently deducted wages of the workers for the abovesaid period. It is alleged that act of the management was illegal and in violation of Standing Notification of Govt. of NCT of Delhi. It is prayed that act of the management in deducting wages during aforesaid 3 period may be declared as illegal lockout and management be directed to pay wages to workers.
3. In the WS filed by the management, it is alleged that management never locked out any worker w.e.f. 7.12.98 rather they resorted to strike from 7.12.98 to 15.12.98. It is alleged that a settlement was arrived at between management and the Union and it was agreed that workmen would not be entitled to any wages for aforesaid period. It is alleged that in view of settlement no dispute remains for adjudication by this Tribunal. It has been denied that management ever victimized the workmen. However, it is not disputed that a charter of demand was received from the Union. It has been denied that it was espoused by the workmen. It is alleged that it was vague charter of demand inasmuch as it was not mentioned on whose behalf it was submitted nor it was crystalized to which establishment it pertained to. It has been denied that management turned out any workman from its establishment w.e.f. 7.12.98. It is alleged that management is having an Inland Container Deport at Tughlakabad. The work in said establishment is allegedly carried out round the clock in shifts. Employees of the said establishment working in 'A' shift as well as General Shift in 4 technical Department went for lunch at 1.00 p.m. on 7.12.98 and after lunch they did not report for duties. Employees of B shift who used to commence their at 2.00 p.m. also did not report for duties and started absenting from duties without any intimation to the management. It is alleged that act of the workmen amounted to strike as per section 2(q) of the Industrial Dispute Act. It is alleged that management had put a up a notice as also sent telegrams and letters to the workman requesting them to resume their duties. It is alleged that management had also written to Labour Department in this regard. It has not been disputed that workmen had raised dispute before conciliation Officer. However, it is alleged that during pendency of conciliation proceedings, a settlement was arrived at on 15.12.98 wherein it was agreed that workmen would not be entitled to any salary for the period 7.12.98 to 15.12.98. It is alleged that settlement was honuored by the management inasmuch as Sh. Hemant Kumar was reinstated. It is alleged that workmen are not entitled for any relief.
4. In the rejoinder, workmen have reiterated all the stands taken in his statement of claim and have denied the averments made in the WS of management.
5. On the basis of pleadings of the parties, following 5 issues were framed by my Ld. Predecessor vide order dated 21.1.03:-
(i) Whether workmen were on strike during the period 7.12.98 to 15.12.98 ? OPM
(ii) Whether the management has resorted to the lock out ? OPW
(iii) Terms of reference.
6. On behalf of the workmen, affidavit of WW--1 Suresh Kumar Ranga, General Secretary of the Union has been filed and he has been cross examined. On behalf of the management, affidavit of Sh. S.K.Tyagi, Director has been filed and he has been cross examined as MW--1.
7. None has appeared on behalf of workmen to argue the case. I have heard AR for the management and have carefully gone through record of the case. My issuewise findings are as under :-
8. Findings on issue No Issue no.1: & 2 Issue No 1 is whether workmen were on strike during the period 7.12.98 to 15.12.98 ? Issue No 2 is whether the management has resorted to the lock out ? Both these issues are interconnected, therefore, they shall be decided together. WW--1 Sh. Suresh Kumar Ranga in his affidavit has stated that Union had submitted a charter of demand dated 27.11.98 to the management but this act 6 of the Union was not liked by the management, therefore, in order to victimize Union minded workers, management started coercing the workmen to give in writing that they did not subscribe to the Union and finally turned them out from the establishment w.e.f. 7.12.98. it is deposed that this act of the Management was illegal lockout. It is also deposed that workmen had been reporting for duties daily but they were not allowed to go inside the establishment. Conciliation proceedings are deposed to have been initiated by the workmen and thereafter management took them back on duties w.e.f. 15.12.98. it is deposed that subsequently management deducted wages of the workmen for the period 7.12.98 to 15.12.98. It is deposed that this act of the management amounted to lock out and was illegal. He has proved certificate of registration of the Union as Ex WW1/1, meeting of various meetings have been proved as WW1/2 to 4.
9. In his cross examination, he has admitted that management and the workmen have entered into a settlement in March 1996 and according to that settlement wage structure was provided. He has also admitted that management had written letters and had sent telegrams to pursue the workman to join duties. He has also admitted a 7 letter dated 9.12.98 written by the management to the workmen as Ex WW1/M-1. Similarly telegrams sent by the management have been proved as Ex WW1/M-2 and WW1/M-3. He has also admitted that later on a settlement was arrived at between the Union and the Management copy of which has been proved as Ex WW1/M-4. He has also admitted that in pursuance of the settlement, Sh. Hemant Kumar was reinstated at Panipat. He has also admitted that a joint letter was left with management to send the same to the Labour Department.
10. On the other hand, MW--1 Sh. SK.Tyagi in his affidavit has stated that he was Incharge of the Personal Department at the relevant time in the management. In the year 1998, employees posted in Technical Department of the management are deposed to have been working in shifts. According to him on 7.12.98 workmen working in technical Department in 'A' shift went for the lunch at 1.00 p.m. and they were supposed to resume their work at 2.00 p.m. But, it is deposed that after lunch hours they did not resume their duties. It is deposed that similarly employees of B shift were to report for duty at 2.00 p.m. but they did not report for duties. Similarly workmen of 'C' shift also did not report for duties instead they squatted in company's 8 premises in ICD Tuglakabad. He has deposed that workmen remained on strike till 15.12.98 when a settlement was arrived at in which it was agreed that they would not be paid wages for the period they remained absent. According to this witness, notice was put up on 8.12.98, copy of which has been proved as Ex MW1/E. Telegrams are deposed to have been sent General Secretary of employees' Union on 8.12.98, 9.12.98, 11.12.98 and 12.12.98, copies of which have been proved as Ex MW1/F,1/G,1/h and 1/I respectively. Postal receipts regarding dispatch of the telegrams have been proved as Ex MW1/J to Ex MW1/M. Telegram sent to the workmen has been proved as Ex MW1/N and postal receipt showing dispatch thereof has been marked as Ex MW1/O. He has also deposed that management has not locked out any employees nor management had refused the duty to any of its employees rather workmen did not report for duties despite issuing notice and sending telegram. Subsequently agreement is deposed to have been reached between the parties which has been proved as Ex MW1/Q according to which it was agreed that workmen will not be entitled for wages for the period 7.12.98 to 15.12.98 on the principle ' no work no pay'.
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11. In his cross examination, he has stated that management had put up notice on the Notice Board mentioning that management was not having any lock out and requesting the workmen to join their duties. Similarly information was sent to Labour Department. He has also stated that management had pasted notice on the notice Board on 8.12.98 requiring the workmen to join their duties but they did not do so.
12. None has appeared on behalf of the workmen to argue the case. On the other hand, it has been argued on behalf of the management that WW--1 has admitted that management had put up a notice requiring workman to resume the work but they did not do so. Secondly, it is argued that management had sent telegrams to the Union requiring workmen to join their duties but they did not do so. It is further argued that when workmen despite request did not resume their duties it entailed in cessation of work and amounted to strike. It is further argued that settlement was entered into between the parties which has been proved as Ex MW1/4 according to which it was agreed that workmen would not be paid wages for the period 7.2.98 to 15.12.98, hence, no dispute remains for this tribunal for adjudication.
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13. 'Strike' has been defined U/s 2(q) of Industrial Dispute Act. Section 2(q) is as follows:-
'' strike'' mens a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or to accept the employment''.
14. According to this definition in order to constitute a strike, there should be concerted cessation of work by a body of persons employed in a particular industry.
15. Lock out has been defined U/s 2(l) of Industrial Dispute Act. Section 2(l) is as follows '' 'lock out' means the temporary closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him''.
16. According to this definition, there should be temporary closing of place of employment or suspension of the work or there should is refusal by employer to continue to employ any number of persons employed by him. By reading both these sections together the position as emerges is that if there is a concerted understanding to bring cessation of work on the part of workmen, it will constitute 'strike'. On the other hand, if temporary suspension of the work has been brought about by volitionary act on the part of management, that will amount 11 to 'lock out'.
17. In the present case, it has been admitted by WW--1 that notice was put up by the management on the Notice Board requesting the workmen to resume duties. He has also admitted that management had sent telegrams to other workers to resume duties. In his affidavit, though he has stated that workmen had been going to the management, but he has added that management refused to allow them to join the duties. If it was so why the workmen's Union entered into a settlement Ex WW1/M-4 agreeing to forgo wages for the period of their absence i.e. 7.12.98 to 15.12.98 ? This settlement in itself shows that cessation of work was volitional and concerted act of the workmen and not of the management, therefore, I am of the view that on the basis of evidence on record, it can be said that workman had gone on strike and Management had not declared any lock out. These issues are accordingly decided against the workmen and in favour of the management. s
18. Findings on issue No 3
19. Issue No 3 is as per terms of the reference. Terms of reference are whether the workmen whose names appear in Annexure A were on strike during the period of 12 7.12.98 to 15.12.98 or the management had resorted to lock out and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/ Govt notifications and to what other relief are they entitled and what directions are necessary in this respect ?. Reference has been partially answered in decision on issue Nos 1 and 2. I have come to the conclusion that when workmen did not report for duties for the period 7.12.98 and 15.12.98, it was a concerted action on their part to bring cessation of work and therefore it constituted 'strike'. Since management had put up notice and had sent telegrams to the workmen requesting them to resume their duties, it can not be said that management had any intention to declare lock out at any point of time. Therefore, question arises whether workmen will be entitled to wages, consequential benefits or monetary relief under the existing laws/ Government notifications for the aforesaid period.
20. In this regard, WW--1 has admitted that settlement was arrived at between the management and Union Ex WW1/M-4. It is an agreement between representatives of the Union and representatives of the Management. According to clause 2 of this settlement, it 13 was agreed that no charge sheet would be issued to anyu staff for any incident during the period 7.12.98 to 15.12.98. According to clause 3 of settlement, period of absence from duty would be treated on the principle of ' No work, no Pay'. This agreement was executed between representatives of the Union and Management and the same has not been disputed. When it was agreed between the parties that period of absence of workmen would be treated on the principle of '' No work, no Pay''. It is clear that workmen had expressly conceded period of their absence as period of strike this is why they agreed not to be paid wages for the period they did not work. Therefore, I am of the view that in view of settlement Ex WW1/M-4, workmen are not entitled for any pecuniary benefits for the period 7.12.98 to 15.12.98. This issue is accordingly decided.
21. On the basis of findings on issue Nos 1 to 3, I come to the conclusion that it stands proved on record that workmen remained on strike for the period 7.12.98 to 15.12.98 and management had not resorted to lock out. Secondly, in view of settlement Ex WW1/M-4 arrived at between representatives of the Union and representatives of the Management workmen had agreed not to be paid 14 wages for the period 7.12.98 to 15.12.98 on the principle ' No work, no Pay', therefore, they are not entitled for any monetary relief along with consequential benefits.
22. Reference is answered in above terms and award is passed accordingly. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 19.02.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.