Bombay High Court
Doodh Kamgar Sabha vs Zurisingh Beechusing And Co. And Anr. on 17 March, 2004
Equivalent citations: (2005)ILLJ709BOM, 2004(4)MHLJ449
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition takes exception to the judgment and order passed by the Industrial Court, Mumbai, dated August 23, 1999, in Complaint (ULP) No. 555 of 1993. The complaint was filed by the Kamgar Sabha against the establishment. Respondent No. 1 is a registered partnership firm engaged in the business of stable. The said partnership firm is the licensee of Unit No. 17 belonging to Aarey Milk Colony. Respondent No. 2 is one of the partners of the said firm. It is the case of the petitioner-complainant that respondents own 130 buffalos in the said Unit No. 17 belonging to Aarey Milk Colony and had employed 13 workmen to carry out the day to day work, such as cleaning, milking, etc. The workers came together and formed petitioner Union sometime in 1992. As the workers came together and formed union, obviously there was resistance from the respondents. The differences between the workmen and the establishment with the filing of complaint by the petitioner bearing Complaint (ULP) No. 181 of 1993 complaining of unfair labour practice against the respondents under Item l(a) of Schedule II and Item 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971. In the said complaint, application for interim relief was made and upon considering the materials on record, the Court granted ad interim relief, which reads thus :
"5. In the circumstances mentioned above, the complainant prays :
a) That pending the hearing and final disposal of the complaint, the respondents, their agents, and servants be restrained by an order of injunction or any other appropriate order or direction of this Hon'ble Court from;
i) Discharging, dismissing or otherwise in any way terminating the services of the workmen whose names are mentioned in Annexure-A to the complaint without following due process of law.
ii) Coercing, intimidating, threatening or otherwise in a way forcing the workmen to resign from the complainant Unit, iii) Coercing, intimidating, forcing, threatening the workmen whose names are mentioned in Annexure-A to the complaint to vacate the residential quarters or otherwise in any way throwing the workmen out of their residential quarters where they presently reside."
2. The said complaint was eventually decided in favour of the petitioner on 28th June, 1999. The operative part of the order passed in favour of the petitioner reads thus :
"(1) Complaint (ULP) No. 181 of 1993 filed by the Complainant Union is hereby allowed.
(2) It is hereby declared that the respondents have committed unfair labour practices under item l(a) of Sch. II and under item 9 of Sch. IV of the MRTU and PULP Act, 1971, and hence the respondents are hereby directed to cease and desist from engaging in such unfair labour practices.
(3) The respondents are hereby further directed to pay to the present workmen at least minimum bonus for the financial year 1991-92 under the provisions of the Payment of Bonus Act and also to pay wages to the said workmen not less than the wages applicable under provisions of the Minimum Wages Act as applicable to the employees employed in the Stable Industry.
(4) No order as to costs.
(5) Complaint stands finally disposed of."
3. In the interregnum however, the respondents filed complaint, being Complaint (ULP), No. 488 of 1993 against the petitioner Union alleging that the workmen have resorted to an illegal strike with effect from 14th April, 1993. In that complaint, ad interim order was passed on April 15, 1993, on the following terms :
"3. The respondents 1 to 3 to this complaint their agents, and members, volunteers, hirelings as well as all the workmen Annexure 'A' to the complaint are by an order and injunction (of) Hon'ble Court hereby desisted and refrained from :
(a) Holding violent demonstrations or picketing within a radius (of) 200 (two hundred) meters from the compound of any of the complaint at Unit No. 17, Aarey Milk Colony, Goregaon (E), Bombay 400065.
(b) Entering into or about or remaining in or within any of the complainant's Establishments at Union No. 17 during strike w.e.f. 14-4-1993 or lockout if desired, except for the legitimate lawful purpose of carrying out their respective duties if and to them in the complainant's Establishment and all other land work if assigned in connection with the business of the complaint.
(c) Preventing or obstructing the complainant's other willing, cooperative and loyal employees, managers, proprietors, partners and visitors and other persons lawfully having ingress into or egress from the complainant's Establishment."
What is relevant to note is that the complaint as filed by the respondents was, however, dismissed for non-prosecution on 6th August, 1998 and that order has become final. The case of the petitioner in the present complaint, being Complaint (ULP) No. 555 of 1993, is that the respondents have indulged in unfair labour practice within the meaning of Section 28 read with item No. 6 of Schedule II and Item No. 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971. The background in which the said complaint has been filed can be culled out from the affidavit filed by the petitioner by way of evidence in the said complaint. Paragraph 7 to 10 of the said affidavit reads thus :
"7) I say that in the said complaint (ULP) No. 488 of 1993, the respondents had obtained an ex parte ad interim relief restraining my union and the employees from staging any demonstration etc. I say that after obtaining the said interim relief in the said complaint (ULP) No. 488 of 1993, on 16th April, 1993 at about 3.30 pm the respondents with active assistance of the Chief Executive Officer of the Aarey Milk Colony, the security staff of the Aarey Milk Colony and some constables and officers of Aarey Police Station physically removed all the workmen from the residential quarters with their family and children and also threw out all their belongings and locked their residential quarters. The respondents have done this in spite of the restraining order of the Honourable Industrial Court, Shri A. D. Deshpande, in complaint (ULP) No. 181 of 1993. I say that the provisions of the residential quarters is a condition of service of the employees and accordingly all of them were provided the residential quarters. I say that by throwing the employees out of the residential quarters, the respondents have engaged in the unfair labour practices under Item 9 of Schedule IV of the MRTU and PULP Act, 1971.
8) I say that the respondents did not give any notice as required before effecting the lockout from 1.30 pm on 14th April, 1993. I, therefore, say that the lockout effected by the respondents from 1.30 pm on 14th April, 1993 amounts to unfair labour practices under Item 6 of Schedule II of the MRTU and PULP Act, 1971.
9) I say that by an order passed on 13-5-1993 below Exhibit U-2 this Honourable Court was pleased to direct the respondents to allow all the workmen to stay in their residential quarters. The Honourable Court was also pleased to direct the Investigating Officer to break open the lock of the residential quarters of the employees and allow them to enter and stay in the said residential quarters in case the respondents fail to obey the orders of the Honourable Court. I say that on 13th May, 1993, the Investigating Officer of this Honourable Court Shri Padarkar had gone to the site and in the presence of the investigating officer, the respondents - opened the lock of the residential quarters of the employees and allowed them to enter and stay in the residential quarters. I, however, say that the respondents have not lifted the lockout and all the employees are under illegal lockout till today. I say that in their written statement the respondents alleged that they have effected a partial lockout w.e.f. 11th May, 1993. I say that the said notice of partial lockout dated 11th May, 1993 is an eye wash. I say that even the said notice of partial lockout dated 11th May, 1993 is illegal as no notice as required under Section 24(2) of the MRTU and PULP Act, 1971 was given. I say that the respondents allegation in the written statement that the workmen are on illegal strike from 1.30 pm 14-4-1993 is false. I say that the respondents had effected a lockout of the employees from 1.30 pm on 14-4-1993. 10) I say that the illegal lockout effected by the respondents from 1.30 pm on 14-4-1993 still continues. I, therefore, say that this Honourable Court be pleased to direct the respondents to lift the lockout and allow all the workmen, whose names are appearing in Annexure A to the complaint to resume work and provide them their original work and also to pay them full wages from 1.30 pm on 14th April, 1993 till they are allowed to resume work. I further pray that this Hon'ble Court be pleased to direct the respondents not to dispossess the employees of their residential quarters."
4. It is seen from the record that the respondents neither chose to cross-examine the petitioner's witness nor thought it necessary to adduce positive or independent evidence in support of its case made out in the written statement.
5. Reverting back to the case of the respondents in the written statement, it was contended that all employees have resorted to illegal strike from 14th April, 1993 without giving prior notice in that behalf, which eventually resulted in causing loss to the respondents as some of the buffalos died for want of care. It is stated in the written statement that the respondents resorted to partial lockout by giving notice dated 11th May, 1993. On the basis of the pleadings as filed, the Court framed three issues which read thus :
"1) Does complainant Sabha prove that the respondents have proposed and are proposing or continuing a lockout deemed to be illegal under this Act, and thereby they have committed unfair labour practice under Item 6 of Sch-II of the Act?
2) Does complainant Sabha prove that the respondents have failed to implement any Award, Settlement or Agreement and thereby they have committed unfair labour practice under Item 9 of Sch-IV of the Act?
3) What order?"
However, as mentioned earlier, the respondents neither cross-examined the witness of the petitioner, nor thought it necessary to produce independent evidence to support its case. In spite of this position, the Industrial Court by the impugned judgment and order has only partly allowed the complaint by passing the following order :
"1) Complaint is partly allowed.
2) It is declared that the respondents have engaged into unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act.
3) The respondents are further directed to cease and desist from engaging in such unfair labour practice.
4) The respondents are directed to allow the employees named in Annexure-A to the complaint Exh.U/1 to resume on duties, if they are really interested."
6. The Industrial Court has proceeded on the basis that the petitioner has not produced any material on record to show that the respondents have effected illegal lockout. It then went on to observe that that Court had no jurisdiction to answer the claim putforth by the petitioner regarding payment of bonus to the workmen as that issue can be resolved only by an independent forum under the Payment of Bonus Act. It also observed that no Award, Settlement or Agreement is signed in between the complainant and the respondents. According to the Counsel for the petitioner, the Industrial Court has completely misdirected itself in recording the above opinion. It is submitted that having regard to the fact that the evidence adduced by the petitioner in the form of affidavit of the petitioner's witness remained unchallenged as no cross-examination of that witness was insisted upon, nor any independent evidence produced on behalf of the respondents, the petitioner ought to have succeeded on all fours. It is then contended that, in such a situation, the Industrial Court could not have recorded the opinion that the petitioner has failed to produce material to support its case of illegal lockout, especially when the case made out in the affidavit, which is extracted earlier, has remained unchallenged. It is next contended that even the opinion expressed that the issue of bonus cannot be considered in the present proceedings, contends learned Counsel for the petitioner that even the same is inappropriate. According to him, however, the claim of bonus made in the present case was as per the statutory provisions and ought to have been granted by the Industrial Court once it was found that no evidence is forthcoming at the instance of the respondents regarding illegal strike resorted to by the workmen. He submits that if the workmen were claiming bonus in excess of the statutory provisions, only then the question of adjudication of that issue could have arisen, to be done by the independent forum under the provisions of the Payment of Bonus Act. It is next contended that even the opinion recorded by the Industrial Court that there was no Award, Settlement or Agreement between the petitioner and the respondents is untenable, because the case specifically made out by the petitioner was one of breach of service conditions. If that case was to be accepted, it necessarily follows that it was breach of agreement of employment. Accordingly, the learned Counsel submits that the Industrial Court ought to have allowed the complaint as a whole instead of granting part relief, referred to above.
7. Although the respondents were served with the notice of this petition and had entered appearance through Counsel, none is present when the matter is called out and heard for quite sometime. The record indicates that initially, Mr. Jog, Advocate, had entered appearance on behalf of the respondents, but he opted to take discharge. Before passing order of discharge, this Court issued notice to the respondents. Respondent No. 2, who is the partner of respondent No. 1 firm, declined to claim the packet sent by the R.P.A.D., which obviously would be deemed service. In the circumstances, the order of discharge was passed on 16th October, 2000. Thereafter, the respondents have not bothered to make necessary arrangements to espouse their cause. In the circumstances, I have examined all the relevant materials on record with the assistance of the Counsel appearing for the petitioner, I find force in the arguments canvassed on behalf of the petitioner that once it is found that the respondents neither chose to cross-examine witness of the petitioner, nor produced any independent evidence, it would necessarily follow that the case made out on behalf of the petitioner by the said witness on affidavit is proved and established. I have already adverted to the relevant portion of the affidavit, in particular para 7 onwards. On plain reading of the contents of the said affidavit, the petitioner has, to my mind, clearly established the fact that the respondents have effected illegal lockout with effect from 14th April, 1993. Indeed, the respondents had obtained ad interim order in their favour in complaint (ULP) No. 488 of 1993. That ad interim order implicitly required the respondents to carry on its day to day activities of business and allow the workmen to discharge their duties. On the other hand, the petitioner has made out a case that being armed with the said ad interim order, the respondents created impression on the workmen who wanted to attend the work that there was interim order in favour of the respondents and against the workmen. Such a case is made out on affidavit, which fact has remained unchallenged. If that fact was to be accepted as it is, it necessarily follows that the respondents did not permit the workmen to work on and from 14th April, 1993, which means that they resorted to illegal lockout. The case made out in the written statement on behalf of the respondents was that they have given notice regarding partial lockout. However, this fact is refuted by the petitioner's witness on affidavit, clearly asserting that no notice even regarding partial lockout was received by the petitioner. Even that assertion has remained unchallenged. Viewed in this perspective, the Industrial Court has, in my opinion, committed manifest error in answering issue No. 1 against the petitioner, whereas the same ought to have been answered in the affirmative. In other words, from the materials on record, it is obvious that the case made out by the petitioner has remained unchallenged and the defence taken on behalf of the respondents has not been established in evidence. Accordingly, I answer issue No. 1 in favour of the petitioner.
8. I also find substance in the submission canvassed on behalf of the petitioner that the Industrial Court has committed manifest error in taking a view that the relief regarding payment of bonus cannot be granted by that Court. If the complainant was claiming payment of statutory bonus, such a relief can obviously be granted by the Industrial Court. In fact, such a relief was granted in the earlier complaint filed by the petitioner decided on June 28, 1999. The operative order is already reproduced above. There is nothing on record to suggest that the petitioner was claiming bonus in excess of the statutory amount. If it is so, the petitioner was entitled even for that relief.
9. That takes me to the opinion expressed by the Industrial Court that there was no Award, Settlement or Agreement signed between the petitioner and the respondents. As I have already arrived at the finding that the case made out by the petitioner that the workmen were not allowed to work on and from 14th April, 1993, it necessarily follows that such act has resulted in breach of agreement of employment, which inevitably would fall within the purview of item No. 9 of Schedule IV of the Act. Viewed in this perspective, the complaint, as filed by the petitioner, alleging that the respondents committed unfair labour practice in terms of Item No. 9 of Schedule IV of the Act also deserves to be accepted.
10. There is one more reason recorded by the Industrial Court for refusing part of the relief to the petitioner. The Industrial Court has found that on the principle of "no work no wages", the members of the petitioner-union will not be entitled for wages right from the date of strike or lockout. Even this view cannot be sustained. I have already found that the positive case made out by the petitioner was that the workmen were not allowed to work on and from 14th April, 1993. Such a finding obviously would militate against the respondents, who were to canvass the argument on the principle of no work no wages. If the respondents did not permit the workmen to work during the relevant period, they cannot be permitted to take advantage of their own wrong by invoking that principle. So understood, the workmen would be entitled for the claim of wages on and from 14th April, 1993, as they were unable to work because of the illegal lockout resorted to by the respondents. It will be useful to invoke the dictum of the Apex Court in the case of Union of India v. K.V. Jankiraman, of this decision at page 2017, it is observed that in cases where the employee is willing to work is kept away from work for no fault of his, the principle of "no work no pay" is not applicable.
11. Insofar as the claim of the respondents in the written statement alleging illegal strike resorted to by the workmen is concerned, as mentioned earlier, that fact has not been established by the respondents by adducing any evidence. Therefore, it is unnecessary for me to elaborate on that aspect.
12. Accordingly, this petition succeeds. The complaint as filed by the petitioner is allowed in its entirety. Ordered accordingly. Rule made absolute with costs.
13. All concerned to act on the copy of this order duly authenticated by the Court Stenographer of this Court.