Delhi High Court
Ajay Enterprises Ltd. vs The Secretary (Labour) Govt. Of Nct Of ... on 31 October, 2006
Equivalent citations: 2007 LAB. I. C. 755, 2007 (2) AJHAR (NOC) 708 (DEL.) = 2007 LAB. I. C. 755, (2007) 5 SERVLR 395, (2006) 134 DLT 227, (2007) 112 FACLR 981, 2007 LABLR 86, (2007) 3 SCT 218
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of orders of Respondent No. 1 dated 6.1.1997 whereby an alleged dispute between petitioner and respondent No. 3 was referred for adjudication to the Industrial Tribunal and an order prohibiting continuance of lock-out was passed.
2. Briefly, the facts are that the petitioner was running a restaurant in the name of M/s Americano Restaurant at Vishal Enclave, Rajouri Garden. One employee of the restaurant viz. Prem Singh, committed misconduct and management issued a charge-sheet cum suspension letter dated 24.9.1996 on him. Prem Singh, instead of replying to the charge-sheet, sought support of other workmen and some employees of the restaurant supported him and went on sudden strike from 7.00 p.m. on 30.9.1996 and demanded that the charge-sheet issued to Prem Singh be withdrawn. They also sat on 'dharna' at the main gate and obstructed willing employees as well as the the customers from entering the premises of the restaurant. During conciliation management took the stand that it will allow the workmen to resume duty only if each workman gives an undertaking that he would not indulge in misconduct and shall not resort to strike. Four workmen gave this undertaking and rest of the workmen refused to give undertaking. It was reported to the Labour Authorities by the workmen union that the management had declared a lock out on 30.9.1996. The Conciliation Officer issued letters to the management regarding claim of the union, to which the management gave replies mentioning that it were the workmen, who were refusing to perform their duties and were not giving necessary undertaking. Management was ready to take all the workmen on duty provided they give undertaking of not repeating the violent and disorderly conduct and not going on strike. However, the respondent No. 1 passed impugned order dated 6.1.1997 referring the dispute in following terms for adjudication of Industrial Court/Labour Court:
Whether the workmen shown in Annexure 'A' are entitled to wages for the lock-out w.e.f. 30.09.96 and if so, what directions are necessary in this respect?
3. On the same day, the respondent No. 1 also passed an order prohibiting the continuance of lock out forthwith in respect of the workmen given in the list attached with the order.
4. Petitioner challenged the validity of this order on the ground that the order did not represent the real dispute between the parties. Respondent No. 1 made reference under the pressure of the union. The reference was made in a mechanical manner. It was pleaded that since Industrial Tribunal has no jurisdiction to go beyond the terms of reference, the petitioner had no remedy but to approach this Court for giving directions to the Respondent No. 1 to make reference of the real dispute between the parties.
5. In the counter affidavit filed by the respondent No. 1 & 2, it is stated that the writ petition was not maintainable. The petitioner did not appear before the Conciliation Officer and did not produce the relevant record when the Labour Inspector visited the premises. The admitted position of petitioner is that workmen could resume their duties only in the event of giving an undertaking of not going on strike. It is submitted that taking of such an undertaking was in contravention of the settled proposition of law and this amounted to lock out. Therefore, the reference was made keeping in view the stand of the petitioner and there was no infirmity in the reference.
6. While making reference the competent Government is supposed to consider the entire facts and circumstances of the case. It has not been denied by the respondent No. 1 that the dispute started when the petitioner served charge-sheet on one of the workmen and under his instigation his supporters resorted to strike, and 'dharna' outside the restaurant and did not allow customers and willing workers to enter into the premises of the restaurant. The business of restaurant is such that if the employees resort to such strike and give 'dharna' outside the gate, it comes to standstill. A high degree of civil conduct is expected from the employees of a restaurant. If the employees resort to violence, abusing or such misconduct, which affect the decorum of the place and congenial atmosphere, the restaurant is bound to close down. A restaurant or hotel owner cannot run restaurant or hotel if the employees indulge in unruly behavior. No fault can be found with issuance of charge-sheet to the erring employee. The resultant strike resorted to by the employees naturally affected the restaurant business and the petitioner could not have allowed the workmen to resume duty unless the workmen gave undertaking of civilized behavior and not resorting to such behavior and strike.
7. When an employee is served with a charge-sheet, the appropriate course for the employee is to reply to charge sheet and fight charges legally. He can take help of union in espousing his cause. However, legitimate union activity does not allow blackmailing or compelling employer or somebody not to proceed against erring employee as per law. I consider that when all these facts were brought to the notice of the appropriate Government, the appropriate Government should have referred a dispute in totality. The conclusion arrived at by the appropriate Government merely because the representative of management did not appear in the office of Conciliation Officer, that it was a lock out cannot be considered a right conclusion. Management had repeatedly written to the Conciliation Officer that there was danger to the life of the officials of the management, who were being prevented from giving an appearance before the Conciliation Officer. It is not the stand taken by the respondent union that any guarantee or assurance of safety of the management representatives was given to the management. Under these circumstances no adverse inference could be drawn against petitioner.
8. In Glaxo Laboratories Employees' Union v. Glazo India Ltd. 1996 LLR 885 Bombay High Court observed that obtaining of an undertaking by the management cannot be described as a change in the conditions of service within the meaning of Section 9(a). In that case, the workmen were resorting to flash strike, go slow and slogan shoting - Management of company required each workman to execute undertaking that he will not go on strike during his shift and would maintain discipline and ensure normal output. Court upheld taking of such undertaking.
9. I consider that while it is the duty of the employer to comply with all the labour laws, give necessary facilities to the employees, it is also obligatory on the employees to work in a manner that the business of the employer runs smoothly. If employees create hindrances in the business of the employer and resort to strike because one of the employees was charge-sheeted for misconduct no, fault can be found with the employer in asking for an undertaking. It the employees refuse to give an undertaking of good behavior, civilised attitude and not resorting to strike on issuance of charge sheet to one of the employees, the employer can refuse to take back such employees & this cannot be termed as lockout. Labour unions have no fundamental right to go on strike on all issues. Strike, as a tool has to be used as a last resort for justifiable cause, after exhausting all other avenues of settlement of dispute. Strike cannot be converted into a tool of blackmail or as a shield to protect the erring employees. When the appropriate government was made aware of all facts in writing by the management, it was obliged to make a reference of the dispute as inferred from version of both the parties and not on the basis of one side story.
10. In Moolchan Kharati Ram Hospital K. Union v. Labour Commissioner and Co. JT 2000 (Suppl 2) SC 204, Supreme Court held that it is open to High Court to examine whether relevant considerations in making the reference had been taken or not. In the present case, the respondent had not taken into consideration the real dispute and made reference about lock out concluding itself that there was a lock out.
11. Both the orders of the respondent No. 1 are set aside. The respondent No. 1 is directed to make a reference taking into account all relevant material produced by the management as well as workmen. With this direction, the writ petition is disposed of.