Madras High Court
United Labour Federation vs Government Of Tamil Nadu on 2 July, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02..07..2013 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.33142 of 2012 and M.P.No.1 of 2012 United Labour Federation, Regn. NO.2657/CNI, Rep. By its Joint Secretary, 149, 4th Floor, CJ Complex, Thambu Chetty Street, Chennai-1. ... Petitioner -Versus- 1.Government of Tamil Nadu, Rep. By its Principal Secretary, Department of Home, Secretariat, Chennai 600 009. 2.The Superintendent of Police, Kancheepuram District, Kancheepuram 621 306. 3.The Inspector of Police, Sriperumbudur Police Station, Kancheepuram District 602 105. 4.Gates Unitta India Company Private Limited, Plot NO.F19, SIPCOT Industrial Park, Pondur, Sriperumbudur, Kancheepuram District 602 105. 5.The Chief Inspector of Factories, Chepauk, Chennai 600005. 6.The Inspector of Factories, 130/1, Gandhi Road, Sriperumbudur. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India, praying for issuance of a writ of mandamus forbearing the respondents 1 to 3 from aiding the 4th respondent-Management in any manner to removing and shifting the machineries, materials nor dyes, etc. from the factory and defeat the right to livelihood of the workers belonging to the petitioner-union and bring in outside workers in the factory from interfering in any manner in the industrial dispute between the workmen belonging to the petitioner-union and the 4th respondent-Management. For Petitioner : Mr.V.Prakash , Senior Counsel for Ms.S.Kala & R.Gokulraj For Respondents : Mr.Sanjay Mohan for Mr.M.Kandasamy for R4 Mr.P.H.Aravind Pandian, Additional Advocate General Assisted by Mr.S.Rajeswaran,Spl. Government Pleader and Mr.N.Sakthivel, Government Advocate for RR1 to 3 O R D E R
The petitioner is a registered Trade Union known as United Labour Federation. The 4th respondent is a company registered under The Indian Companies Act and it is stated to be a subsidiary of two multinational companies viz., (i) Gates Corporation, and the other (ii) Nitta Corporation of Japan. The 4th respondent has its factory at the SIPCOT Industrial Estate in Sriperumbudur. The 4th respondent is manufacturing various parts for automobiles and trucks. Earlier the workers of the 4th respondent were not members of any trade union. For the first time, about 108 workers joined the petitioner union and the same was intimated to the 4th respondent on 12.11.2012. It is alleged that this was not to the liking of the 4th respondent. Thereafter, it is alleged, the 4th respondent management started victimising the members of the petitioner union who are workers under the 4th respondent. In those circumstances, the petitioner trade union declared a strike from 05.12.2012 making certain demands.
2. As on 05.12.2012, the break up of the total number of employees in the respondent industry is as follows:-
Management Staff [Officers] 153 Operators 93 Trainees 32 Apprentices under the --
Apprentices Act
---------
Total 278 ---------
Out of the above employees, 81 operators and 26 trainees joined the strike and they did not attend the work/training. Prior to the commencement of the strike, the petitioner union made a written representation to the 4th respondent, with a copy marked to the 2nd respondent, requesting them not to aid the 4th respondent to break the strike by bringing outsiders to work in the place of the workers who are on strike. It is further alleged that after the commencement of the strike , the 4th respondent had brought in some workers from other states so as to break the strike. Some of the Managers also started working on machines though they were not in the rolls of the factory as workers. Therefore, according to the petitioner on 06.12.2012 he made a complaint to the Inspector of Factories. However, no action was taken on the same. While so, the Conciliation Officer called the parties for talks on 08.12.2012 in which the petitioner participated. The conciliation proceeding was adjourned to 10.12.2012 at the instance of the 4th respondent. It is further alleged that the petitioner union placed before the conciliation officer certain facts showing violation of the Factories Act and The Migrant Workers Act and The Contract Labour Act to break the strike . But, there was no progress made in the conciliation.
3. It is the further case of the petitioner that when things stood thus, the Deputy Superintendent of Police and the Inspector of Police started providing protection to the 4th respondent to take in outsiders who are not on the rolls of the factory in order to break the strike. It is stated that it is none of the duty of the police to aid the 4th respondent to break the strike by entering into the industrial dispute and to aid the 4th respondent to bring the outsiders who are not on the rolls of the factory to do the work of the workers who are on strike.
4. With the above allegations the petitioner has come up with this writ petition seeking the following reliefs:-
A writ of mandamus directing the respondents 1 to 3 herein:
(i) not to interfere in the Industrial Dispute between the petitioner and the 4th respondent in any manner,
(ii) not to interfere in the peaceful strike declared by the petitioner union in the 4th respondent factory by aiding the 4th respondent to break the strike in any manner including the removal or shifting of machineries, materials or dyes , etc., from the factory and defeat the right to livelihood of the workers belonging to the petitioner union and
(iii) not to aid the 4th respondent to bring in outside workers in the factory to do the work done by the members of the petitioner union.
5. The 4th respondent has filed a detailed counter. The foremost objection raised in the counter is that the writ petition is not maintainable for the following among other grounds.
(a) The strike indulged in by the members of the petitioner trade union is illegal. According to the counter, the petitioner is carrying on manufacture and supply of automobile belt systems that include Timing Belts, MV Belts, V Belts, Tensioners and Idlers and supplying the same to several Original Automobile Equipment Manufacturers (OEM). Since the Automobile Manufacturing Industry has been declared as a Public Utility Services by the Government of Tamil Nadu vide G.O.Rt.No.256, Labour and Employment (D2) Department, dated 10.08.2012, the strike which is in contravention of Section 22 of the Industrial Disputes Act [hereinafter referred to as the I.D. Act]is illegal.
(b) After the strike had commenced, the 4th respondent filed a civil suit in O.S.No.250 of of 2012 on the file of the learned Subordinate Judge, Kancheepuram against the petitioner trade union seeking various reliefs. In the said suit, the 4th respondent had filed an application in I.A.No.1041 of 2012 seeking certain interim orders, such as, interim order to restrain the petitioner union, its members, office bearers, agents, servants or any one acting on their behalf stopping ingress and egress of plaintiff and its personnel, officers , suppliers, and its employees, visitors, customers to the factory, stopping the inward and outward movement of raw materials or finished products and vehicles. The learned District Munsif granted interim order of injunction on 17.12.2012 and the said interim order is still in force. In view of the said interim order, according to the 4th respondent, the 4th respondent is at liberty to seek assistance of the 2nd and 3rd respondents to enforce the interim order made in I.A.No.1041 of 2012 if there is any violation.
(c) The strike resorted to by the members of the petitioner union was duly intimated to the Assistant Commissioner of Labour (Conciliation-I), Irungattukottai, Sriperumbudur on 06.12.2012 by the 4th respondent. The conciliation officer issued a notice of hearing dated 08.12.2012 advising the petitioner union members not to indulge in strike and directed the petitioner union and the 4th respondent Management to appear and participate in the conciliation proceedings on 10.12.2012 and the said conciliation proceeding is still pending. In view of the pendency of the said conciliation proceeding, the same issue cannot be gone into by this court in this writ petition.
6. It is further alleged in the counter that the 4th respondent company is bound to supply materials to its Original Equipment Manufacturers within the committed time limit, failing which not only the reputation of the 4th respondent company would be affected adversely, and consequence of which the production of the Original Equipment Manufacturer shall also be affected. The 4th respondent is the sole supplier of belts which is the prime component in the engine for Original Equipment Manufacturing and unless it is supplied in time uninterruptedly to the Original Equipment Manufacturers, they cannot manufacture their product (Car) and the same would affect their business and schedule of product, delivery, etc., resulting in heavy financial loss to them and the 4th respondent would be held responsible for such loss.
7. It is further alleged that a total number of 280 employees are employed in the 4th respondent company including Managers, Management Staff, Workmen, and Apprentices (Trainees) and the work of packing, house keeping and warehousing has been outsourced on contract to the agency, namely, Sagaya Annai Associates, Stores and Moves, Pinky caterers and SIS Securities.
8. It is further alleged that the 4th respondent has registered with the appropriate authority in Form II as Principal Employer and the contractors have obtained license from the appropriate authority and registered under Form VI under the Contract Labour Act. The 4th respondent company imparts training and after successful completion of training, the trainees are taken on the rolls of the company, if they are qualified.
9. It is further alleged in the counter that the members of the petitioner union also disrupted the co-employees who were willing to work thereby causing hindrance to production. The members of the petitioner union had put up tents on the property of SIPCOT and on a road which is used for movement of trucks, thus, causing safety hazard and probability of accident. Thus, the members of the petitioner union disrupted the peaceful functioning of the 4th respondent company by blocking the entrances of the factory premises by gathering in front of the gate and closed the gate thus blocking the movement of staffs, personnel, officers, visitors, customers and suppliers and their employees, vehicles and materials into the factory.
10. It is also alleged that from 06.12.2012, the members of the petitioner union continued to assemble in front of the main gate and, therefore, apprehending law and order problem at the hands of the petitioner union, the 4th respondent management submitted a letter to the Inspector of Police, Sriperumbudur requesting police protection. Later on, it also came to the knowledge of the 4th respondent management that the members of the petitioner union had the support of few unknown outsiders and at their hands there were threats to the employees who were working inside the factory. Therefore, another letter was submitted to the Inspector of Police on the same day informing the situation for further action. Though the police personnel were present nearby the factory premises, the members of the petitioner union continued their agitation by shouting slogans against the management and its officers mentioning and calling by their names using filthy and abusive language causing enormous disruption and embarrassment to the working officers and employees. Thus, according to the 4th respondent, the members of the petitioner union disrupted ingress and egress of its staff members into the factory. These kinds of activities on the part of the members of the petitioner union continued on 08.12.2012 also. It was in those circumstances, the civil suit was filed in O.S.No.250 of 2012 and interim order was also obtained.
11. The 4th respondent has denied the allegation that the police is aiding the management to break the strike or interfering in the industrial dispute and to bring in outsiders who are not on the rolls of the factor to do work in the place of the workers who are on strike
12. Subsequently, the 4th respondent has filed an additional affidavit dated 05.06.2013 wherein the 4th respondent has given the following undertakings made in the context of the prayer in the writ petition as follows:-
1. I submit that at the present time this management of the factory has no intention to remove any machinery or equipment or dyes and therefore will not approach the police. Hence, the question of protection or police assistance on this score is not required.
2. I submit that the Management has never approached nor will it approach the police in regard to any Industrial Dispute. It is submitted that the Industrial Dispute is pending before the Government of Tamil Nadu consequent to failure of Conciliation Proceedings initiated before the Assistant Commissioner of Labour, Sriperumbudur between the petitioner union and the 4th respondent management. Hence, the question of police protection or police assistance on this score is not required.
3. However, the Management shall seek the assistance of the police in the event of any law and order problem arising or in order to effectively implement the orders of injunction of the Subordinate Judge Court, Kancheepuram made in I.A.Nos.1039 to 1042 of 2012 in O.S.No.250 of 2012.
4. I submit that the existing licensed contractors as on date shall supply required Contract Labour as per the license issued by the Statutory Authorities under the provision of the Contract Labour (Regulation and Abolition) Act, 1970.
5. I submit that at the present time the factory / management has no intention to recruit any person in the workman category over and above those workmen on rolls today (05.06.2013) during the strike that is going on. Hence, the question of police protection or police assistance on this score is not required. However, I submit that the respondent as part of expansion of their Plant in accordance with the business plan existed earlier to the strike and to meet the demand in the market have already added some more machineries such as calendaring process, vulcanizers, Rib grinders and cranes apart from the existing machineries to introduce new products / enhance manufacturing capacity. I submit that in order to operate those added machineries, the Respondent reserve their right to employ, recruit required employees as and when required.
6. It is the case of the Management that the strike by the workmen is illegal because the Management's factory is a public utility in terms of the Industrial Disputes Act. Therefore, in accordance with the judgement dt. 15.07.2005 of this Hon'ble Court in the matter of Chennai Container Terminal Private Limited v. Chennai Container Terminal Employees Association during an illegal strike the Management has the right to engage persons in the place of those workmen who are on illegal strike. If required suitable orders of an appropriate Court will be sought for to prevent interference by the Petitioner union in this regard.
13. The petitioner has filed an additional affidavit dated 19.12.2012 wherein inter alia he has narrated certain events which, in my view need not be reproduced herein since they are not material to decide the issues involved in this writ petition.
14. Again the petitioner has filed an affidavit dated 05.06.2013 in CRP (PD) No.632 to 635 of 2013. The learned counsel for the petitioner submitted that the said affidavit filed in C.R.P. [PD] Nos.632 to 635 of 2013 may be read in this writ petition as it is only an additional affidavit of undertaking. In the said affidavit, the petitioner has given the following undertakings:-
4.With regard to prayer 2 in I.A.No.1041 of 2012, we give undertaking that we will not stop the ingress and egress of the petitioner/plaintiff and its Officers, Suppliers, Visitors and Customers to the factory, or stop the inward and outward movement of raw materials or finished products and vehicles that carry them. We will not stop the employees of the contractors who were doing packing, security and house keeping, which work alone was being done through contractor prior to the strike on 5th December 2012. We have objection to contract labour being brought into our work so as to break the strike.
5. With regard to prayer in Sl.No.3, the petitioner in I.A.No.1040 of 2012, the petitioner gives an undertaking that we will not obstruct plaintiffs lawful discharge of duties and will not prevent its officers and contract labourers employed for the work referred to in clause 3 supra, from carrying on their business.
6. It is respectfully submitted that the petitioner will not interfere with the officers doing their office work and the work they were normally doing before 05.12.2012 namely prior to the date of strike. The petitioners have objection to the officers working on the machines when they are not workmen within the meaning of the Factories Act and are not registered in the list of adult workers of the factory and the officers cannot be used to break the strike of the workers, as admittedly being done.
7. With regard to the prayer in clause 4 in I.A.No.1039 of 2012, the petitioner will not interfere with the business of the petitioner/plaintiff subject to the petitioner/plaintiff as long as they do not take illegal measures to break the strike of the workers.
15. The 4th respondent has filed yet another additional affidavit dated 07.06.2013 wherein he has given the break up details of the persons working. The total number of employees as on 05.12.2012 and as on 05.06.2013. According to the crux of the said affidavit, out of 93 operators employed as on 05.12.2012, 81 have been indulging in strike and thus, only 12 are continuously attending duty. Similarly, out of 32 trainees who are on the rolls as on 05.12.2012, 26 have been indulging in strike and thus, only 6 are attending duty. All the 153 management staff are attending duty. Out of 6 trainees who are attending duty, 4 have been confirmed on successful completion of their training. The management is maintaining its manufacturing process with the available operators, supervisors and managers. It is also stated that as on 05.06.2013, the management had engaged as many as 64 trainees and 24 apprentices. They were all engaged from various dates. Thus, as on 05.06.2013, there are 157 Management staff, 16 operators, 64 trainees and 24 apprentices and thus, the total tally of staff, trainees and apprentices is 281. Similarly, it is also stated that as on 05.06.2013 there are 79 contract employees working in the factory though 100 contract employees could be engaged by the 4th respondent as per the permission granted to it. It is also stated that for the operation of the newly installed/to be installed machines, the 4th respondent has planned to recruit employees for which they have also published advertisement in news papers. It is more specifically contended that the new post called for is not for the post of operators or in the place of the operators who are not attending work, but for the newly installed machines.
16. In essence, the contention of the 4th respondent is that no illegal activity is being indulged in by the 4th respondent in violation of any of the labour laws and all activities which are going on at the instance of the 4th respondent are within the norms of the labour laws and thus, the writ petition is devoid of merits and the same is liable to be dismissed.
17. The 3rd respondent/Inspector of Police has filed a counter in this writ petition. In the said counter, it is stated that the police have not interfered with the affairs of either party. As a matter of fact, they have only posted one police constable in the vicinity of the factory premises to watch the developments there with regard to the on going strike and to reassure the loyal workers of the factory who are willing to continue with their work in the factory that they are safe and secure. It is stated in para 4 of the counter that the members of the petitioner union who are on strike have put up tents in front of the factory gates and have been resorting to slogan shouting, hooliganism and intimidation. It is also stated that the police do not provide protection to the 4th respondent to take outsiders who are not on the rolls of the factory to break the strike. The workers are camping outside the factory gates round the clock and have been checking the factory vehicles for outsiders / new workers as and when they are driven in and out of the company. It is also stated that as the law enforcing authority, the 3rd respondent is only discharging his functions and the 3rd respondent do not support the 4th respondent in breaking the strike in any manner.
18. I have heard Mr.V.Prakash, the learned senior counsel appearing for the petitioner; Mr.Sanjay Mohan, the learned counsel for the 4th respondent; and Mr.N.Sakthivel, the learned Government Advocate for the 3rd respondent and also perused the records carefully.
19. The foremost objection raised by the learned counsel for the respondent management is that the strike is illegal and, therefore, the petitioner is not entitled for any of the reliefs sought for in this writ petition.
20. But, the contention of the petitioner trade union is that the strike is legal and non violent. The members of the petitioner trade union had never indulged / shall never indulge in disturbing industrial peace. On the contrary, the respondent management is indulging in illegal activities. More precisely, according to the petitioner, the management is indulging in unfair labour practices which is an offence punishable under the I.D. Act. Therefore, according to the petitioner, the members of the petitioner trade union are entitled for protection of the State and thus they are entitled for the reliefs sought for in this writ petition.
21. In order to appreciate the rival contentions, let us have a look into the relevant provisions of the Industrial Disputes Act. Section 22 of The I.D. Act prohibits the workmen to go on strike in breach of contract in a 'Public Utility Service' without adhering to the conditions enumerated in the said provision. Section 24 of The I.D. Act declares that any strike commenced or declared in contravention of Section 22 or 23 of the I.D. Act is illegal. In the instant case, admittedly, the conditions enumerated in Section 22 had not been adhered to by the petitioner as according to the petitioner, Section 22 of the I.D. Act is not applicable to the respondent management because the respondent industry is not a public utility service as defined in Section 2(n) of the I.D. Act. But, it is the contention of the respondent management that the 4th respondent industry is a public utility service as it falls within the definition of automobile manufacturing industry.
22. Section 2(n) of the I.D. Act defines public utility service which reads as follows:-
2(n) 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 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; (Emphasis supplied) In the First schedule, so far as Tamil Nadu is concerned, automobile manufacturing industry was not originally included and thus, it was not a public utility service. While so, in exercise of the power conferred under Section 40(i) of the I.D. Act, the Government of Tamil Nadu issued G.O.Ms.No.122, Labour and Employment (D2) Department, dated 10.08.2012 thereby including 'automobile manufacturing industry' to the First Schedule to the I.D. Act. On the same day, the Government of Tamil Nadu issued G.O.Rt.No.256, Labour and Employment (D2) Department, dated 10.08.2012, in exercise of the power conferred under Section 2(n)(vi) of the I.D. Act, thereby declaring 'automobile manufacturing industry' to be a 'public utility service' for the purposes of the said Act for a period of six months on and from the date of publication of the said notification. Thus, on and from 10.08.2012, for a period of six months, so far as Tamil Nadu is concerned, Automobile Manufacturing Industry is a Public Utility Service in terms of Section 2(n)(vi) of the I.D. Act.
23. As I have already pointed out, the 4th respondent company is carrying on manufacture and supply of automobile belt systems that include Timing Belts, MV Belts, V Belts, Tensioners and Idlers and supplying the same to several Original Automobile Equipment Manufacturers (OEM) and thus, according to the 4th respondent, it is a public utility service. This contention is disputed by the petitioner. According to the petitioner, the 4th respondent is not an Automobile Manufacturing Industry as it is manufacturing only automobile parts and, therefore, it is not a public utility service. In this regard, the contention of the respondent management is that the expression 'Automobile Manufacturing Industry' should mean the industry manufacturing parts of automobile also. Thus, the core question now is whether manufacture of these items by the 4th respondent company will bring the 4th respondent industry within the definition of 'Public Utility Service' as mentioned in G.O.(Rt) Nos. 122 and 256 referred to above? Before embarking upon the task of interpretation of the above expression viz., 'automobile manufacturing industry' for the purposes of the I.D. Act, let us have a glance through certain important aspects which are to be borne in mind while doing the said exercise.
24. At the out set, I may borrow the language of the Hon'ble Supreme Court in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Limited, (1999) 6 SCC 82 wherein the Hon'ble Supreme Court had dealt with the objectives sought to be achieved by the I.D. Act. In para 5 of the judgement, the Hon'ble Supreme Court has stated thus:
Before appreciating the rival contentions urged on behalf of the parties, it has to be noticed as to under what circumstances the act was enacted and what was the objectives sought to be achieved by its legislation. It cannot be disputed that the act was brought on the statute book with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. It is a piece of legislation providing and regulating the service conditions of the workers. The object of the Act is to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country in its turn, helps to improve the conditions of labour (Hindustan Antibiotics Ltd v. The Workman). The Act is intended not only to make provision for investigation and settlement of industrial disputes but also to serve industrial peace so that it may result in more production and improve the national economy. In the present socio political economic system, it is intended to achieve co-operation between the capital and labour which has been deemed to be essential for maintenance of increased production and industrial peace. The Act provides to ensure fair terms to workman and to prevent disputes between the employer and the employees so that the large interests of the public may not suffer. The provisions of the Act have to be interpreted in a manner which advances the object of the Legislature contemplated in the statement of objects and reasons. While interpreting different provisions of the Act, attempt should be made to avoid industrial unrest, secure industrial peace and to provide machinery to secure the end. Conciliation is most important and desirable way to secure that end. In dealing with industrial disputes, the courts have always, emphasized doctrine of social justice, which is founded on basic ideal of socio-economic equality as enshrined in the Preamble of our Constitution. While construing the provisions of the Act, the Courts have to give them a construction which should help in achieving the object of the Act. [Emphasis supplied] Keeping in mind the objectives sought to be achieved by the Act as elaborated in the above judgement and taking guidance from the said judgement as to how the provisions of the Act are to be interpreted, let us now analyse the circumstance under which, under G.O.Nos.122 and 256, Automobile Manufacturing Industry was declared by the Tamil Nadu State Government as a Public Utility Service.
25. The Managing Director of Hyundai Motor India Limited [HMIL], a wholly owned subsidiary of Hyundai Motor Company, South Korea, which is the second largest and fastest growing car manufacturer in India, entered into a Memorandum of Understanding [MoU] with the Government of Tamil Nadu. One of the clauses in the said understanding is as follows:-
Government of Tamil Nadu or through the relevant authority shall declare the HMIL project to be a Public Utility to prevent labour indiscipline, if any.
26. Based on the said MoU, the Government of Tamil Nadu issued G.O.(Ms) No.101, Industries (MID 1) Department, dated 23.04.2008 declaring that the Government will provide 'Public Utility' status to prevent labour indiscipline, if any. After establishing the manufacturing industry at Irungattukottai, near Chennai, the Managing Director of the company had sent a letter to the Government of Tamil Nadu on 08.08.2007 requesting the Government to declare the HMIL as 'Public Utility Service' as per the provisions of the Industrial Disputes Act so as to help the said company to meet any eventuality in the event of any industrial unrest. It would be worthwhile to extract the entire letter of the Managing Director of HMIL herein below:-
You are aware that Hyundai Motor India Limited (HMIL), a wholly owned subsidiary of Hyundai Motor Company, South Korea, is the second largest and fastest growing car manufacturer in India.
HMIL's fully integrated state-of-the-art manufacturing plant at Irrungattukottai near Chennai boasts some of the most advanced production, quality and testing capabilities in the country. In continuation of its investment in providing the Indian customer global technology, HMIL is setting up its second plant, which will produce an additional 330,000 units per annum, rising HMIL's total production capacity to 630,000 units per annum by end of 2007. HMIL is investing to expand capacity in line with its positioning as HMC's global hub for compact cars.
HMIL's plant at Irrungattukottai is providing employment to 4,883 persons directly and 4317 persons indirectly. Apart from this, the suppliers of HMIL, who have set up their own manufacturing units in and around HMIL's plant is providing employment to about 14,000 persons. There are about 9500 persons directly employed by our Dealer Principles.
HMIL's project is being recognized as an Ultra Mega Project by the Government of Tamil Nadu considering its investment stature of about Rs.7500 Crores including the proposed investment of Rs.4,100 Crores and operating status as a large industrial unit in Tamil nadu.
HMIL is operating its plant on three shifts basis to meet its local as well as overseas market demands. HMIL is the No.1 exporter of automobiles in India exporting 1,13,339 nos. of vehicles in the year 2006 and has exported about 4,00,000 cars as of date. Further, with the operation of its second plant by end 2007, the number of vehicles to be exported by HMIL would increase manifold. HMIL would be exporting 40% of its total production to about 100 countries all over the world.
In view of HMIL's large export commitments and to meet its domestic market demands, HMIL has to accomplish its manufacturing operations continuously. Hence, any labour unrest leading to stoppage of production, would not only affect HMIL seriously, but would have great impact on its vendor companies also. You are aware that following HMIL's successful implementation of its automobile project, many multinationals like Nokia, Mahindra, Motorola, Dell have chosen the Sriperumbudur area to establish their projects making huge investments. Hence, any labour unrest in HMIL would certainly create disturbance in the entire industrial belt of Sriperumbudur areas, which has earned its reputation as Detroit of South Asia due to the strenuous efforts taken by the Government of Tamil Nadu.
HMIL, being one of the largest tax players in India, any loss of production/sales would ultimately have an adverse effect on the tax revenues of both the Governments of Tamil Nadu and India to a larger extent apart from derailing our Government's sincere efforts to being in more investments to the State of Tamil Nadu.
For the reasons stated above and considering HMIL's importance in the industrial scenario of Tamil Nadu operating as a hub of automobile sector in South India and being the largest exporter of automobiles in India, we, therefore, request the Government to issue Notification under the I.D. Act, 1947 declaring Hyundai Motor India Limited as Public Utility Service. This would help HMIL to meet any eventuality in the event of any industrial unrest. Based on the said letter, the Commissioner of Labour, Government of Tamil Nadu, addressed a communication under Lr.No.D1/46194/2007 dated 18.04.2010 to the Principal Secretary to Government of Tamil Nadu, recommending to the Government to include 'Automobile Industry' to the First Schedule to the Industrial Disputes Act granting Public Utility Service status to HMIL. To have a clear understanding of the background of G.O.Rt.256, it is worthwhile to extract the letter of recommendation of the Commissioner of Labour, along with two draft notifications appended to the said letter, which read as follows:-
M/s. Hyundai Motor India Ltd., submitted its representation dated 8.8.2007 to declare their unit as Public Utility Service under the provisions of the Industrial Disputes Act,1947.
The request was forwarded by the Director, Industrial Guidance for consideration of said industry as Public Utility Service vide his letter Dir./HMIL/2007, dated 9.8.2007.
Since, the automobile industry was not included in the First Schedule to the Industrial Disputes Act,1947 such necessity to add the above unit to the First Schedule to the provisions of Section 40(1) of the aforesaid Act was examined and a report has been sent to Government that any request of the individual applicant in not tenable. However no reference was made to the recommendation of the Public Utility Service Committee.
It is imperative to point out that Government in letter No.13110/D2/95-4, Labour and employment Department, dated 20.6.1995 had constituted a committee under the Chairmanship of the Commissioner of Labour with Director of Industries and Commerce and the Director of Industrial Guidance and Export Promotion Bureau as members to examine and recommend the Government for declaring or extending the industries as Public Utility Service under the I.D. Act.
As per the guidelines stipulated by the Government, the file containing the request of the HMIL was circulated to the members of the PUS Committee and the members were of the same view to declare the automobile industry as Public Utility Service instead of a single unit to be declared. Also, they have not made any negative views in the matter.
Further, one of the members viz., the Director of Industrial Guidance and Export Promotion Bureau has given his specific remarks and recommendation, stating that the particular applicant unit is one of the largest foreign investor in Tamil Nadu and the largest exporter of automobiles in India and thereby the Government is earning huge amount of foreign exchange.
In response to the above report, Government in letter No.31860/D2/2007-4, Labour and Employment Department, dated 5.5.2009, enclosing a copy of the "Memorandum of Understanding" (MOU) entered between Hyundai Motor India Limited and the Government of Tamil Nadu requested to furnish detailed report on the same.
On perusal of the Memorandum of Understanding entered between Hyundai Motor India Limited and the Government of Tamil Nadu, the Agreement clause is:
'The Government of Tamil Nadu or through the relevant authority shall declare the HMIL project to be a "Public Utility" to prevent labour indiscipline, if any, Based on the above MOU, the Government issued the G.O.(Ms) No.101, Industries (MID 1) Department, dated 23.04.2008 declaring that the Government will provide 'Public Utility' status to prevent labour indiscipline, if any.
The point for conside4ration is that declaration as a public utility service could only be made to the industry as a whole and not a particular establishment and hence we may consider the pros and cons of declaring the automobile industry as Public Utility Service.
With the advent of Industrial growth in this State, and , as well the Government focusing to develop this region as Detroit of Southern India, a lot of new investments in the field of the automobile industry are flourishing and it will earn substantial foreign exchange to the Government exchequer. Already, the existing automobile industries also export major production to foreign countries. Moreover, the Government have already committed to render PUS status in the MOU and in the GO.
There are hundreds of big, medium and small units in the Automobile Industry engaged in the manufacture of passenger cars, commercial vehicles, trucks, military vehicles, two wheelers, auto components like Dashboard Instruments, Assembly Flywheel, Alternators, Suspension etc., The leading manufactures like Ford, Hyundai, Ashok Leyland, TVS Motor Company, PRICOL Ltd., Hindustan Power Plus, Lucas TVS, Sundaram Clayton have manufacturing units in Tamil Nadu and provide employment to thousands of workers.
With the arrival of more number of automobile units, manufacture of accessories and auto components will also come up in the State which may lead to spurt in employment and recent memorandum of understanding signed with the Government by automobile Tyre manufactures like Michelin, Bridgestone is example for employment growth.
In labour management relations, the concept of public utility service will provide dual protection. The legal weapon available in the process of industrial relations is strike to workers and lock-out to managements. As we have seen in the past, especially in multinational Companies, even the slightest provocation in the form of wild cat strikes, minor scuffles, in-plant slow down, disobedience or any of this sort tend the management to declare partial lock out on the workers who had provoked such act of concerted refusal. In a sense, the managements simply declare such kind of imposed lockouts on selected workmen thereby deprive them their right of agitation in any form and silence them by separating them from the regular workforce. When the industry is declared as Public Utility Service, the managements are restricted from such unilateral action without any valid reason. It imposes certain kind of curb on the part of the employers and desist them from their sweet will to punish the workers. In nutshell, the employers in PUS are under obligation to follow strictly the procedures before declaring any lock out so that the interest of workers is protected.
Similarly, the strikes fostered by unions play a havoc in the harmonious growth of industries and their frequency lower down the morale of the Foreign Institutional Investors in automobile industry and leading to shifting of production base out of our State which has got a severe consequence of loss of employment, reduction in State revenue and slow down of industrial growth. The declaration of PUS will help to initiate conciliation talks legally in the event of strike notices thereby averting sudden strikes. The trade unions cannot embark upon threat to go on strike as it is possible in a non-public utility service to do so. As we see in records, the strikes and lockouts in PUS industries are very minimal.
That declaration of PUS is mutually beneficial to both employer and the trade unions.
The Government of Karnataka have already declared Automobiles & Auto Components manufacturing Industries" as Public Utility Service.
Already Motor Transport Industry and industry manufacturing automobiles like Earth Movers, Tractors, Dumpers are declared as Public Utility Service.
The Government have already committed to provide PUS status in order to develop this region as automobile hub.
The Public Utility Service Committee have consented to declare the Automobile Industry as PUS.
Sharp growth in export of automobiles and parts have earned high volume of foreign exchange to the Government exchequer.
The automobile industry being highly labour intensive is prone for strikes and lockouts and the PUS status will act as a check mechanism to prevent the imminent strikes and lock outs.
The State being largest manufacturer of automobiles for public transport system and for individual consumption, larger section of the society/public's interest is envisaged.
As the balance of convenience tilts towards granting public utility service status to Automobiles Industry, It is recommended that it may be included to the First Schedule of the I.D. Act and declare the said Industry as Public Utility Service for a period of six months on a pilot basis. If there is any shortcoming occurs in future, we may re-examine the PUS status to the above industry.
A draft notification is also enclosed.
Sd/- xxxxxx Commissioner of Labour Encl: As above // Forwarded// By Order // for Commissioner of Labour DRAFT NOTIFICATION - I WHEREAS the Governor of Tamil Nadu is of the opinion that it is expedient and necessary in the public interest to add the "Automobile Manufacturing Industry" to the First Schedule of the Industrial Disputes Act,1947 (Central Act XIV of 1947).
Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 40 of the said Act, the Governor of Tamil Nadu hereby adds the "Automobiles Manufacturing Industry" to the First Schedule to the said Act. Principal Secretary to Government DRAFT NOTIFICATION - II WHEREAS the Governor of Tamil Nadu is satisfied that public interest requires that the Automobile Manufacturing Industry" should be declared to be a Public Utility Services for the purpose of the Industrial Disputes Act, 1947 (Central Act XIV of 1947).
Now, therefore, in exercise of the powers conferred by sub-clause (vi) of clause (n) of Section 2 read with the proviso thereto of the said Act, the Government of Tamil Nadu hereby declares the "Automobiles Manufacturing Industry" to be Public Utility Service for the purpose of the said Act , for a period of six months on and from the date of publication of this notification in the Tamil Nadu Government Gazette. Principal Secretary to Government (Emphasis added)
27. The Government of Tamil Nadu again called for certain remarks from the Commissioner of Labour in respect of the necessity or expediency to add to the First Schedule 'Automobile Industry'. The Commissioner of Labour in turn submitted his remarks under Lr.No.D1/46194/2007, dated 08.07.2010. Conceding to the request of the HMIL, with slight modification, and on accepting the recommendation of the Commissioner of Labour, the Government of Tamil Nadu issued G.O.Ms.No.122 Labour and Employment (D2) Department, dated 10.08.2012 and the said notification reads as follows:-
Labour and Employment (D2) Department G.O.(Ms) No.122 Dated: 10.08.2012 READ:
1) From the Managing Director, Hyundai Motor India Limited, Kancheepuram Letter dated 8.8.2007.
2) From the Commissioner of Labour Letter No. D1/46194/2007, dated 23.12.08, 30.4.09, 18.4.10, 8.7.10 and 9.4.2012.
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ORDER:
The following Notification will be published in the Tamil Nadu Government Gazette:-
NOTIFICATION WHEREAS, the Governor of Tamil Nadu is of the opinion that it is expedient and necessary in the public interest to add Automobile Manufacturing Industry to the First Schedule to the Industrial Disputes Act, 1947 (Central Act XIV of 1947);
NOW, THEREFORE, in exercise of the powers conferred by subsection (1) of section 40 of the said Act, the Governor of Tamil Nadu hereby adds Automobile Manufacturing Industry to the First Schedule to the said Act. (BY ORDER OF THE GOVERNOR) Sd/- xxxxx PRINCIPAL SECRETARY TO GOVERNMENT On the same day, the Government issued G.O.Rt.256, Labour and Employment (D2) Department, dated 10.08.2012 which reads as follows:-
Labour and Employment (D2) Department G.O.(Rt).No.256 Dated: 10.08.2012 READ:
1) From the Managing Director, Hyundai Motor India Limited, Kancheepuram, Letter dated 8.8.2007.
2) From the Commissioner of Labour Letter No. D1/46194/2007, dated 23.12.08, 30.4.09, 18.4.10, 8.7.10 and 9.4.2012.
3) G.O.Ms.No.122, Labour and Employment (D2) Department, Dated 10.08.2012.
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ORDER:
The following Notification will be published in the Tamil Nadu Government Gazette:-
NOTIFICATION WHEREAS, the Governor of Tamil Nadu is satisfied that public interest requires that the Automobile Manufacturing Industry should be declared to be a public utility service for the purposes of the Industrial Disputes Act, 1947 (Central Act XIV of 1947);
NOW, THEREFORE, in exercise of the powers conferred by sub-clause (vi) of clause (n) of section 2 read with the proviso thereto of the said Act, the Governor of Tamil Nadu hereby declares the Automobile Manufacturing Industry to be a public utility service for the purposes of the said Act for a period of six months on and from the date of publication of this notification in the Tamil Nadu Government Gazette.
(BY ORDER OF THE GOVERNOR) Sd/- xxxxx PRINCIPAL SECRETARY TO GOVERNMENT
28. With the above background facts, let us consider the contention of the learned counsel on either side on interpretation of statutes. In his written submission, the learned counsel for the petitioner has stated that the first rule of interpretation is the golden rule which stands on the basis that the law maker knows the words to reflect the intention behind the law and that the words employed should be given their natural meaning to infer the intention of the notification. In order to substantiate the said contention, the learned counsel has placed reliance on a judgement of the Hon'ble Supreme Court in Grid Corporation of Orissa Limited v. Eastern Metals and Ferro Alloys and others, (2011) 11 SCC 334 wherein the Hon'ble Supreme Court has held as follows:-
25.........The golden rule of interpretation is that the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where however the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred, by posing the following questions: (i) What is the purpose for which the provision is made? (ii) What was the position before making the provision? (iii) Whether any of the constructions proposed would lead to an absurd result or would render any part of the provision redundant? (iv) Which of the interpretations will advance the object of the provision? The answers to these questions will enable the court to identify the purposive interpretation to be preferred while excluding others. Such an exercise involving ascertainment of the object of the provision and choosing the interpretation that will advance the object of the provision can be undertaken, only where the language of the provision is capable of more than one construction. [See Bengal Immunity Co. V. State of Bihar] 1955 (2) SCR 603 and Kanailal Sur v. Paramnidhi Sadhukhan - 1958 SCR 360 and generally Justice G.P.Singh's Principles of Statutory Interpretation, 12th Edition, published by Lexis Nexis - Pages 124 to 131, dealing with the rule in Haydon's case.
29. The learned counsel then relies on a judgement of the Hon'ble Supreme Court in Raghunath Rai Bareja v. Punjab National Bank reported in (2007) 2 SCC 230, wherein, in paragraphs 39 and 40 the Hon'ble Supreme Court has held as follows:
39. In Hiralal Ratanlal v. STO this Court observed: (AIR p. 1035) In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that the court has to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision the legislative intent is clear, the court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear. (SCC p. 224, para 22) (emphasis supplied)
40. It may be mentioned in this connection that the first and the foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB v. Securities and Exchange Board of India. As held in Prakash Nath Khanna v. CIT the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corpn. v. Rajiv Anand. Where the legislative intent is clear from the language, the court should give effect to it, vide Govt. of A.P. v. Road Rollers Owners Welfare Assn. and the court should not seek to amend the law in the garb of interpretation. Again in paragraphs 43, 57 and 58 the Hon'ble Supreme Court has held as follows:
43. In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singhs Principles of Statutory Interpretations, 9th Edn., pp. 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
***
57. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.
58. We may mention here that the literal rule of interpretation is not only followed by judges and lawyers, but it is also followed by the layman in his ordinary life. To give an illustration, if a person says this is a pencil, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.
30. Referring to the principles stated in the above judgements, the learned counsel for the petitioner would further contend that in the case on hand, the expression Automobile Manufacturing Industry is unambiguous and the same does not give any room for two or more constructions and, therefore, the court should have regard only to the natural meaning of the words used in the provision as the said expression is incapable of receiving more than one construction. It is the precise contention of the learned counsel that in the instant case, the expression Automobile Manufacturing Industry clearly gives one single ordinary meaning i.e. an industry which manufactures automobile, which does not include manufacturing of auto parts or prime components of automobiles. The learned counsel would, therefore, submit that in view of the plain language which clearly reflects the intention of the Legislature, it is not possible to adopt any other construction under the guise of identifying the intention of the Legislature.
31. But, according to the 4th respondent management, the term automobile manufacturing industry includes an establishment producing parts of automobile as well. According to the learned counsel, there is a vast difference between the expressions 'manufacturer' and 'manufacturing industry'. The language used in the Government Order is only manufacturing and not manufacturer. According to the learned counsel though the First Schedule to the I.D. Act was amended at the instance of HMIL, since the Government wanted to include all the industries involved in automobile manufacturing, the Government has cautiously used the language 'manufacturing industries' instead of 'manufacturers'. Thus, according to the learned counsel, the clear intention of the Government is to include automobile parts manufacturing industry also to get the protection of public utility service status.
32. While enacting a law, the Government intends to achieve certain specified objects. When any of the provisions of the Act are interpreted, such interpretation should help in the achievement of the said objects. In other words, an interpretation which is likely to cause any harm to the object of the law or which will not advance the object of the law shall not be adopted. Therefore, it is of utmost importance to ascertain the intention of the Legislature. If the language used in the provision, by its ordinary, natural and popular meaning clearly reflects the intention of the Legislature, it is the golden rule that the language of the provision should be read and understood in its ordinary, natural and popular meaning as the same will advance the object of such law. On the contrary, if the ordinary, natural meaning of the word is incapable of advancing the object of the law, then, it becomes necessary to adopt a different meaning for the said language, deviating from the ordinary natural meaning, which will advance the object of the law. If the language is capable of receiving more than one construction, to choose the one among the same, great effort should be put in to find out the intention of the Legislature so as to adopt the construction which will best serve the achievement of the objects. Thus, at any rate, the purpose of interpretation is to help the law to achieve its objects.
33. With the above broad principles of interpretation in mind, let us now proceed to interpret the expression automobile manufacturing industries. The Dictionary meaning of the word 'automobile' is 'a Car'. The term automobile is used in a broader sense to mean any vehicle propelled by a motor and run on land, except, trains. It is also the popular understanding that automobile industry means an industry relating to automobiles. This includes automobile transport, automobile service and sales, etc. Even from the recommendations made by the Labour Commissioner, referred to above, it could be seen that the Commissioner has also used the expression 'automobile industry' in a broader sense to mean the industries engaged in the manufacture of passenger cars, commercial vehicles, trucks, military vehicles, two wheelers, auto components like Dashboard Instruments, Assembly Flywheel, Alternators, Suspension etc. Thus, the expression 'automobile industry' will include even the industry manufacturing accessories and components of automobiles. But, while submitting the draft notification, the Commissioner, instead of using the expression 'automobile industry', has restricted the same by inserting the word 'manufacturing' in between the words automobile and industry.
34. Now, let us ascertain as to what the ordinary, natural and popular meaning of the expression 'automobile manufacturing industry' is ? For this purpose, we need to know as to how, the term 'automobile manufacturing industry' is understood and used in common parlance. As we have already noticed, the I.D. Act is a device to protect the interest of workmen and also the industrial peace so that the output from the industry is well maintained and that the economy of the country flourishes. In view of the said position, we have to see, as to how, a workman will understand the expression 'automobile manufacturing industry' and use the same. In general, the working class are either illiterates or semi-literates. They cannot be expected to know the circumstances under which the Government has used the expression in the statute. Thus, it is the common man's understanding of the provision that matters. In my view, if a common man is asked as to what is his understanding of the expression automobile industry certainly, he will say that any industry relating to or connected to automobiles. Similarly, if any common man of ordinary prudence is asked, as to what is his understanding of the expression automobile manufacturing industry, I am sure, he will say that it is an industry which manufactures automobiles in full shape. In my considered view, an ordinary workman will not say, out of his understanding, that the expression automobile manufacturing industry will include an industry which manufactures automobile components also. Therefore, in common parlance, undoubtedly, the expression automobile industry will include automobile components manufacturing also whereas, the expression automobile manufacturing industry is understood to mean an industry which manufactures automobiles alone. This is the only natural ordinary meaning which can be given to the expression automobile manufacturing industry.
35. But, it is the contention of the learned counsel for the 4th respondent that if we look into the various correspondences between the Government and the Commissioner of Labour and also his final recommendation, it will clearly show that the intention of the Government is to mean 'automobile manufacturing industry' to include the industry manufacturing auto components as well. The said contention does not persuade me at all. The reasons are manifold. First of all, when the automobile manufacturing industry was added to the First Schedule, the circumstances under which G.O.Ms.122 came to be issued was not made known to the public, more particularly, to the working class. These correspondences are only interdepartmental correspondences to which public have no access. The said GO is not an executive order as it is an order amending the First Schedule to the I.D. Act. After the amendment had come into force, there is no need or occasion for anyone to look into the back file or background of the amendment. A common man, more particularly, the working class is expected to look into the First Schedule alone. The First Schedule states automobile manufacturing industry. On reading this, immediately, the reader will understand the said expression only in its ordinary natural meaning. For example, if the workmen in automobile industry want to go on strike, they will look only into the Schedule and not the interdepartmental correspondences between the Commissioner of Labour and the Secretary to Government which culminated in the amendment to the First Schedule. By having a plain reading of the expression automobile manufacturing industry as found in the First Schedule, certainly, they will understand in such a way that it does not include automobile components manufacturing industry also. They will surely understand that the said industry means only manufacturing of automobiles such as cars, trucks etc. Thus, in common parlance as per the ordinary, natural meaning, the expression automobile manufacturing industry as found in the First Schedule to the I.D. Act does not include into its ambit an industry which manufactures automobile components also.
36. In this regard we may also refer to the recommendations of the Commissioner of Labour wherein he has stated that the Government of Karnataka have already declared Automobiles & Auto Components manufacturing Industries" as Public Utility Service. Having considered this statement and having applied its mind into the same, the Government of Tamil Nadu, while issuing G.O.Ms.No.122, has consciously omitted to use the expression auto components manufacturing industry to the First Schedule. Had it been the intention of the Government to include the automobile components manufacturing industry also to the First Schedule as it has been done by the Karnataka Government, the Tamil Nadu Government would have also specifically mentioned automobile components manufacturing industry as a public utility service. The very fact that even after noticing the fact that the Karnataka Government had used the expression Automobiles & Auto Components manufacturing Industries" as Public Utility Service, the Tamil Nadu Government has chosen to use the expression automobile manufacturing industry, will show that the intention of the Tamil Nadu Government is, beyond pale of any doubt, that the Tamil Nadu Government had no intention to include automobile components manufacturing industry also as a public utility service. Thus viewing from any angle, I find that the expression automobile manufacturing industry receives only one construction which does not include automobile components manufacturing industry into its ambit.
37. The learned counsel for the 4th respondent would submit that there is a vast difference between the expression manufacturer and manufacturing. According to him, a manufacturer means an industry as defined in Section 2(j) of the I.D. Act. He would further state that the word 'undertaking' as employed in Section 2(j) of the I.D. Act will mean a manufacturer also. He would also contend, had it been the intention of the Government to give the status of public utility service only to Hyundai Motor India Limited [manufacturer], the Government would not have used the expression automobile manufacturing industry. According to the learned counsel, the very fact that the Government has used a different language other than automobile manufacturer, would show that the Government has intended to give public utility service status to the entire industry. This argument, though attractive, does not persuade me at all. In my considered view, manufacturer is the one who manufactures and the activity undertaken by a manufacturer is 'manufacturing'. The term 'manufacturer' is the noun whereas the term 'manufacturing' is the adjective. Except the same, I do not find any vital difference between these two expressions as it is sought to be projected by the learned counsel for the 4th respondent. As I have already pointed out, the manufacturer is the one who is manufacturing and thus, simply because the Government has used the language manufacturing instead of manufacturer, it cannot be said that the Government's intention is to distinguish between these two. Thus, viewing from any angle, the term automobile manufacturing industry receives only one single construction and not two or more constructions. The language is unambiguous. Therefore, this argument is also rejected.
38. In view of the above, I hold that the 4th respondent industry is not an automobile manufacturing industry in terms of First Schedule to the I.D. Act and thus, it is not a public utility service. In such view of the matter, I hold that before commencing the strike , there was no need for the petitioner trade union to comply with Sections 22 to 24 of the I.D. Act. In view of all the above, I hold that the strike commenced by the members of the petitioner trade union is not illegal.
39. In view of the above conclusion that the strike is not illegal , there can be no difficulty in holding that if any recruitment of workman, during such strike period, is made by the 4th respondent , it is an unfair labour practice in terms of Entry 12 to the Fifth Schedule. Similarly, if the 4th respondent abolishes the work of regular nature being done by the striking workmen and if the 4th respondent gives such work to the contractors as a measure of breaking the strike, then, that is also an unfair labour practice in terms of Entry 6 to the Fifth Schedule. At this juncture, before proceeding further, let us have a quick look into Sections 2(ra) and 25T and Entries 6 and 12 to the Fifth Schedule to the I.D. Act.
40. Section 2(ra) of the Act reads as follows:-
2(ra) Unfair labour practice means any of the practices specified in the Fifth Schedule;
41. Section 25 (T) of the I.D. Act prohibits the unfair labour practice which reads thus:-
25T. Prohibition of unfair labour practice - No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.
42. Entry 6 to the Fifth Schedule of the I.D. Act reads as follows:-
6. To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
43. Entry 12 to Fifth Schedule of the I.D. Act reads as follows:-
12. To recruit workmen during a strike which is not an illegal strike.
44. Now, let us examine whether the 4th respondent is indulging in unfair labour practice. The learned counsel for the petitioner would submit that during the strike , the 4th respondent has recruited a number of workmen in the place of the striking workmen. For that purpose, the learned counsel would refer to the additional affidavit filed by the 4th respondent dated 07.06.2013. A perusal of the same would go to show that as on 05.12.2012, there were 153 management staff, 93 operators, 32 trainees employed under the 4th respondent industry. Thus, the total number of employees was 278. As on 05.06.2013, according to the additional counter, there were 157 management staff, 16 operators, 64 trainees, 44 apprentices making the tally at 281. It is the contention of the 4th respondent that only a section of operators and trainees are on strike. During the strike period, no operator was recruited. It is the further contention of the 4th respondent that only trainees were engaged during the strike period and that is how, the number of trainees has swelled into 64. In this regard, it is the contention of the 4th respondent that as per the standing order, there is no restriction for engaging any number of trainees. Engaging trainees will not amount to recruitment. Similarly, as per the Apprentices Act, the 4th respondent industry has engaged only 44 apprentices which is within the permissible limit as per the Apprentices Act. It is the contention of the 4th respondent that the engagement of apprentices also will not amount to recruitment. It is the further contention of the 4th respondent that engagement of trainees and apprentices within the permissible limits will not amount to recruitment and so it is not an unfair labour practice. In my considered view, under the guise of engagement of trainees and apprentices, the employer cannot be allowed to engage them to carry on the work performed by the operators. In other words, the trainees and apprentices , should not be treated as substitutes for the striking operators. If that is done, it will amount to recruitment during strike period which is an unfair labour practice. In the counter affidavit dated 07.06.2013, the 4th respondent has stated that the 4th respondent has been managing its manufacturing process with the available operators, supervisors and managers. This stand taken by the 4th respondent is very difficult to be accepted for the reason that the machines involved in the manufacture, which requires 93 operators, cannot be operated by 16 operators who are not on strike. Therefore, it is obvious that the machines are operated by utilizing the services of trainees and apprentices and that is how, the management is able to maintain normal production. But, the learned counsel for the 4th respondent would submit that trainees and apprentices are also capable of operating machineries, which is part of their practical training. During practical training, they operate machines which also results in production, therefore, operation of machineries by trainees and apprentices as a part of training cannot be treated as though they are used as operators, it is contended. In my considered opinion, this argument deserves only to be rejected. The term trainee denotes, the one who undergoes training. Training can be both theoretical and practical. The term apprentice means, the one who learns a trade from a skilled person. In a way, they are also trainees [learners]. Thus, both trainees and apprentices are to receive training from skilled persons. In other words, the trainees require trainers to train them. Without there being trainers, the trainees and apprentices cannot be trained and they cannot learn the skill. The very purpose of engaging trainees and apprentices is to get them trained by the operators who are the skilled men in the trade so as to prepare the trainees and apprentices for future employment. But, in the case on hand, when 81 operators are on strike, it is highly unbelievable that 16 operators could train 108 trainees / apprentices. This clearly indicates that the trainees and apprentices engaged by the 4th respondent are actually not undergoing training, but they are practically working as operators thereby substituting the striking operators and trainees. As a matter of fact, 107 employees [81 operators and 26 trainees] are on strike whereas, the 4th respondent has engaged 58 trainees and 44 apprentices thereby making the tally at 106 (102 + 4). Thus, in the place of 107 operators, the 4th respondent has engaged 106 employees in the name of management staff, trainees and apprentices. This, in my considered opinion, is undoubtedly an unfair labour practice.
45. Now, turning to the contract labourers employed by the 4th respondent, according to the additional counter , as per the Contract Labour (Regulation and Abolition) Act, 1970, the contractors have been engaged for the work of warehousing, housekeeping, packing, security and catering as per the license issued by the statutory authorities under the provisions of the Contract Labour (Regulation and Abolition) Act and they are not engaged in any of the manufacturing activities. The learned counsel for the petitioner is also not able to dispute the above said statement. Therefore, I hold that the petitioner has not violated Entry 6 of the Fifth Schedule to the I.D. Act and thus, in this regard, the 4th respondent has not indulged in any unfair labour practice.
46. Having come to the conclusion that the strike is not illegal and that the 4th respondent has indulged in unfair labour practice, let us now examine as to what is the best relief that can be given to the petitioner in this writ petition. As rightly, pointed out by the learned counsel for the 4th respondent, no relief has been sought for by the petitioner directly against the 4th respondent. All the reliefs sought for in this writ petition are only against the respondents 1 to 3 who represent the State.
47. The first relief sought for in the writ petition is for a mandamus to the respondents 1 to 3 not to interfere in the industrial dispute between the petitioner trade union and the 4th respondent in any manner. In this regard, I shall state that the police authorities have nothing to do with the industrial dispute. The learned Special Government Pleader would submit that the respondents 1 to 3 will not interfere in the said industrial dispute. In the undertaking affidavit dated 05.06.2013, the 4th respondent in paragraph 2 has stated as follows:
2. I submit that the Management has never approached nor will it approach the police in regard to any Industrial Dispute. It is submitted that the Industrial Dispute is pending before the Government of Tamilnadu consequent to failure of Conciliation Proceedings initiated before the Assistant Commissioner of Labour, Sriperumbudur between the petitioner union and the 4th respondent management. Hence the question of police protection or police assistance on this score is not required. In view of the same, there can be no difficulty for this court in issuing a direction to the respondents 1 to 3 not to interfere in the industrial dispute so long as the strike is peaceful. For any reason, if it becomes violent or it takes the shape of disturbing the law and order situation or at the instance of the management there is likelihood of disturbance to law and order, then, it is for the police authorities to restore peace and to prevent any unlawful activities.
48. The next relief sought for is for a direction to the respondents 1 to 3 not to aid the 4th respondent to break the strike in any manner including by removing or shifting of machineries, materials or dyes , etc., from the factory. In this regard, I must state that during the strike period, the 4th respondent has no right to remove any machinery or equipment or dyes etc., for the purpose of breaking the strike as the same is illegal. Regarding this, in the undertaking affidavit , the 4th respondent management has stated thus:-
1. I submit that at the present time this management of the factory has no intention to remove any machinery or equipment or dyes and therefore will not approach the police. Hence the question of police protection or police assistance on this score is not required. In view of the said undertaking, again, there can be no difficulty for this court to issue a direction to the respondents 1 to 3 not to aid the 4th respondent from removing or shifting of machineries, equipment, materials or dyes , etc., from the factory premises. It is further directed that contrary to this undertaking , if any machinery or equipment or material or dyes are removed and attempted to be removed out of factory premises with a view to break the strike, in the event of any complaint regarding the same by workmen, the respondents 1 to 3 shall prevent the same by swiftly making interference.
49. The next relief sought for is a direction to the respondents 1 to 3 not to aid the 4th respondent to bring in out side workers in the factory to do the work done by the members of the petitioner union, who are on strike. In this regard, in the undertaking affidavit dated 05.06.2013, the 4th respondent in paragraph 6 has stated as follows:-
6. It is the case of the Management that the strike by the workmen is illegal because the Management's factory is a public utility in terms of the Industrial Disputes Act. Therefore, in accordance with the judgement dt. 15.07.2005 of this Hon'ble Court in the mater of Chennai Container Terminal Private Limited., - Vs Chennai Container Terminal Employees Association during an illegal strike the Management has the right to engage persons in the place of those workmen who are on illegal strike. If required suitable orders of an appropriate Court will be sought for to prevent interference by the Petitioner union in this regard. Regarding this contention of the 4th respondent, I have already concluded that the strike is not illegal and therefore the management cannot recruit any person to substitute the workers who are on strike. The principle stated in Chennai Container Terminal Private Limited Vs. Chennai Container Terminal Employees Association (O.A.No.159 and 160 of 2005 and A.No.955 and 956 of 2005 in C.S.No.141 of 2005, dated 15.07.2005) has got no application to the facts of the present case because in that case, it was found that the strike was illegal and therefore this Court held that during the illegal strike period, the management had got right to engage any number of workers as the same is not an unfair labour practice in terms of Entry 12 to the 5th Schedule of the I.D. Act. Thus, I hold that the petitioner is entitled for the relief sought for. Therefore, I am inclined to issue a direction to the respondents 1 to 3 not to aid the 4th respondent to bring in any person who is not on the Rolls of the Register of Adult Workers maintained under the Factories Act as on 05.12.2012, into the factory to perform the work earlier performed by the workers who are on strike.
50. In the result, the writ petition is allowed with the following directions to the respondents 1 to 3:
(i) The respondents 1 to 3 shall not interfere in the industrial dispute so long as the strike is peaceful. For any reason, if it becomes violent or it takes the shape of disturbing the law and order situation or at the instance of the management there is likelihood of disturbance to law and order, then, it is for the police authorities to restore peace and to prevent any unlawful activities;
(ii) The respondents 1 to 3 shall not aid the 4th respondent from removing or shifting of machineries, equipments, materials or dyes, etc., from the factory premises during strike period with a view to break the strike. It is further directed that contrary to the undertaking given by the fourth respondent, if any machinery or equipment or material or dyes are removed or attempted to be removed out of factory premises during strike with a view to break the strike, and in the event, there is any complaint regarding the same by workmen, the respondents 1 to 3 shall prevent the same by swiftly making interference; and
(iii) The respondents 1 to 3 shall not aid the 4th respondent to bring in any person who is not on the Rolls of the Register of Adult Workers maintained under the Factories Act as on 05.12.2012, into the factory to perform the work earlier performed by the workers who are on strike.
Consequently, the connected miscellaneous petition is closed. No costs.
02.07.2013 Index : Yes Internet : Yes kmk/kk To 1.The Principal Secretary to Government of Tamil Nadu,, Department of Home, Secretariat, Chennai 600 009. 2.The Superintendent of Police, Kancheepuram District, Kancheepuram 621 306. 3.The Inspector of Police, Sriperumbudur Police Station, Kancheepuram District 602 105. 4.The Chief Inspector of Factories, Chepauk, Chennai 600005. 5.The Inspector of Factories, 130/1, Gandhi Road, Sriperumbudur. S.NAGAMUTHU,J. Kmk/kk PRE DELIVERY ORDER in W.P.No.33142 of 2012 and M.P.No.1 of 2012 02.07.2013