Bombay High Court
General Secretary, Engineering Labour ... vs T.L. Steel (P) Ltd. on 4 October, 1989
Equivalent citations: [1990(60)FLR367], (1990)IILLJ207BOM
JUDGMENT
1. This writ petition is filed against the order dated April 28, 1987 passed by the Industrial court, Pune in Complaint (ULP) No. 123 of 1986 dismissing the complaint filed by present petitioner.
2. The complainant trade union filed the present complaint on April 15, 1986 alleging therein that the respondent - Company has committed unfair labour practice under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice act, 1971, read with schedule II, items 1(a), 1(b) and 4(a) and schedule IV items 9 and 10.
3. According to me, the short limited question before me is whether the act of accepting the resignations of 200 persons by the respondent Company during the luck-out period amount to violation of any of the provisions of the Unfair Labour Practices Act.
4. Few undisputed facts are that respondent is a private company which used to manufacture stainless steel sheets. According to the complaint, initially the company had about 350 employees and the present petition - Union was the union which was looking after the interest of the employees since 1980. Further contention of the complainant - Union was that on December 11, 1981 the factory workers went on strike and after the said strike was over, the respondent - Company organised one. T.K. Steel Workers Union as their sponsored union and entered into settlement with that union. The said settlement was not accepted by the majority of the workers who were the members of the complainant - Union and, therefore, the demands of the complainant - Union were taken to the Industrial Court in Reference (IT) No. 87 of 1982. Further contention of complainant - Union was that in fact the respondent was making profit and in spite of that the respondent made applications to the Government of Maharashtra for permission to retrench and give lay-off and both these application were rejected. The said applications were made to the Government because at the relevant time the respondent - Company had more than 100 employees. Immediately after the rejection of the said applications, the respondent - Company effected lock-out from November 14, 1983 by issuing notice. Against the said lock-out the present petitioner filed a complaint before the Industrial Court at Pune being Complaint (ULP) No. 664 of 1985 wherein the union made specific allegations as under :
"Subsequently, the complainant unilaterally withdrew that strike. According to the complainant, thereafter the respondent sponsored a rival union, so as to undermine the present complainant and so, the present complainant filed Complaint. (ULP)) No. 64 of 1982, in the Industrial Court at Pune. The complainant's case is that as the management's efforts to undermine the complainant - Union, were unsuccessful, the respondent resorted to the device of retrenchment amounting to an unfair labour practice, as contemplated by Item 1(b) in Schedule II of the M.R.T.U. and P.U.L.P. Act 1971. The complainant further maintain that the Management's action in suspending the operation w.e.f. November 14, 1983 also amounts to an unfair labour practice, as envisaged by Item (6) in Schedule II of the M.R.T.U. and P.U.L.P. Act. 1971 as the said suspension of operations is not justified or warranted by any provisions of law of the provisions of the standing orders, applicable to the respondent's workmen. Hence, the complainant has filed this complaint, for declarations that the Management's action of suspending the operation, w.e.f. November 14, 1983 and of informing the workmen, of their intention to commence a lock-out w.e.f. November 28, 1983, amounted to unfair labour practices covered by Items 1(b) and 6 of Schedule II of the M.R.T.U. and P.U.L.P. Act, and for a direction, requiring the respondent to cease to engage in those unfair labour practices and not to commence any such lock-out and also to require the respondent to treat all the workers on duty w.e.f. November 14, 1983 and to pay all legal wages and allowances and other facilities and benefits to the workers."
In the said complaint, ultimately the Industrial Court ordered that the lock-out from November 14, 1983 to November 27, 1983 (both days inclusive) is illegal but the lock-out from November 28, 1983 was not held to be illegal lock-out. The said decision given by the Industrial Court came up to the High Court and the findings given therein were confirmed in the High Court.
5. Thereafter, the petitioner-Union filed the present complaint being Complaint (ULP) No. 123 of 1986 wherein it was contended on behalf on the petitioner - Union that the respondent - Company has effected lock-out continuously from, November 14, 1983 which in fact resulted in coercion due to which about 200 workers and the staff members resigned between November 1983 and January 1986 reducing the strength of the employees to bare 65 workers. According to them by this act the respondent - Company has indulged in unfair labour practice under items 1(a), 1(b) and 4(a) of Schedule II. It was further contended that the respondent - Company in fact entered into settlement with T.K. Steel Workers Union in the year 1983 and in the said settlement it was agreed that no retrenchment would be made during the settlement and by forcing the employees to resign by continuously effecting lock-out from November 14, 1983, the respondent - Company has committed violation of the agreed term which they agreed with the T.K. Steel Workers Union in the year 1983 and thereby their act comes within the unfair labour practice under Items 9 and 10 of Schedule IV of the Act of 1971.
6. Shri Naik, learned Counsel appearing on behalf of the petitioner - Union, fairly confined his argument to the breach as contemplated under Schedule II, 1(b) and Schedule IV, Item 9. According to Shri Naik, learned Counsel for the petitioner - Union, by continuously keeping the lock-out from November 14, 1983 the respondent - Company virtually forced 200 employees to resign, which act comes within Schedule II, 1(b). According to the learned Counsel this argument was not properly considered by the Industrial Court in its judgment. On the other hand, it is pointed out by Shri Talsania that the allegation of unfair labour practice with reference to Schedule II, 1(b) as alleged by the complainant - Union is not at all maintainable in the facts and circumstances of this case. Schedule II, items 1(a) and 1(b) are as under :
"I. To interfere with, restrain or coerce employees in the exercise of their right to organise, from, join or assist a trade union and engage in concerned activities for the purposes of collective bargaining or other mutual aid or protection, that is to say -
(a) threatening employees with discharge or dismissal, if they join a union;
(b) threatening a lock-out or closure, if a union should be organised."
7. According to me it is clear from reading the aforesaid provisions that the threat of lock-out should be of that a nature wherein the company wishes to prohibit organisation of any union. According to me the earlier complaint was already filed being Complaint (ULP) No. 664 of 1983 by the complaint - union in the year 1983, wherein the specific allegations were made that the respondent - Company, in order to undermine the complainant - Union deliberately commenced lock-out, which amounts to unfair labour practice and in the decision in the said complaint the said allegation is negatived and to that effect the complaint was dismissed and the High Court also confirmed that finding. In view of this, in fact according to Shri Talsania, learned Counsel on behalf of the respondent Company, the petitioner cannot connect that aspect with the episode of resignation of 200 persons during the lock-out. I am also of the opinion that in view of that decision, now the present petitioner - Union cannot make allegation that the respondent - Company, to undermine the present petitioner - Union, took the step of lock-out and thereby coerced the employees to resign. In view of this position, it is clear that the case of the petitioner - Union cannot come within the ambit of Schedule II, 1(b). Apart from the aforesaid position, the trial Court has also gone through all the evidence and documents and has come to the conclusion on finding of fact that in fact there is no evidence that the lock-out was not bona fide and, therefore, since this is a finding of fact, I do not wish to disturb this finding.
8. Shri Naik, learned Counsel for the petitioner - Union, thereafter strenuously argued that in the year 1983 there was a settlement between the T.K. Steel Workers Union and the respondents - Company and in the said settlement it was agreed that during the continuance of the settlement there shall be no retrenchment of the employees. According to Shri Naik by continuously effecting lock-out from November 14, 1983 till today the respondent - Company has deliberately created a situation wherein there was no other alternative for the workers but to resign under coercion and this, according to him, amounts to virtually a retrenchment. His further contention is that since it is a retrenchment, which is in breach of the settlement arrived at with the other union, it amounts to unfair labour practice under Schedule IV, item 9 of the Act of 1971. According to Shri Naik, the learned Member, Industrial Court, Pune wrongly applied the ratio of M/s. Tata Chemicals Ltd. v. The Workmen, Tata Chemicals (1978-II-LLJ-22). According to him it is true that the settlement arrived at otherwise than in the course of conciliation proceedings comes under Section 2(p) and is binding on the parties to the agreement, but the Industrial Court has completely lost sight of the fact that under Section 28 of the unfair Labour Practices Act, 1971, the petitioner - Union has got a right to make a complaint about this unfair labour practice. Section 28 is as under :
"28, (1) where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint. ..;
In view of this Section 28 of the Act of 1971, according to the Petitioner - Union there is nothing which prohibits them from filing a complaint about unfair labour practice. According to me there is great force in this argument and in fact after reading the section, it is clear that any person mentioned in Section 28 can file a complaint within the prescribed time of limitation. Still according to me this does not help the Petitioner - Union further, the reason being admittedly, the alleged settlement took place between the respondent - Company and the T.K. Steel Workers Union, to which the present union was not party. Not only that, they rejected the said proposal given by the company. Item 9 of Schedule IV is as under.
"9. Failure to implement award, settlement or agreement."
There is no evidence on record to show that in fact there is a failure to implement the agreement which was arrived at between the other union and the respondent - Company. So even if Presuming that under Section 28 of the Unfair Labour Practices Act, 1971 the petitioner - Union has got locus standi to file a complaint, since there is no evidence on record on the basis of which one can say that in fact there was a settlement of a specific nature and breach was committed thereafter, there is no question of unfair labour practice under Item 9 of Schedule IV. Again this is the conclusion of fact arrived at by the Industrial Court and I do not think that this is a case where I can say that the said finding is perverse or there is any error apparent on the face of record. In view of this position, I do not wish to disturb the findings of facts on both these points given by the lower Court, with the result the writ petition is dismissed with no order as to costs. Rule discharged.