Madras High Court
M.R.F. Employees Union Through Its ... vs The Management Of Mrf Ltd., Madras, The ... on 10 June, 2002
Equivalent citations: (2003)ILLJ881MAD
ORDER
1. In these writ petitions, series of actions taken by the Madras Rubber Factory as against the workers in their Pondicherry Unit, hereinafter described as the "Management", are called in question by the MRF Employees Union, hereinafter called "Union", and M.R.F. Thozhilalar Sangam, hereinafter called the "Sangam".
2. In W.P.No.20270 of 2001, mandamus is sought for by the Union to direct the management not to give effect to the order of dismissal dated 9.10.2001 passed as against D.Ramachandra Reddy, Secretary of the Union.
3. In W.P.No.20591 of 2001 mandamus is sought by the MRF Thozhilalargal Sangam (Sangam) for reinstating 116 workers together backwages and for all consequential benefits and to direct the management to strictly comply with the provisions of the Model Standing Orders and the provisions of the Factories Act.
4. In W.P.No.19 of 2002, Sangam prays for the mandamus against the management not to recruit any new workers or to recruit any workers juniors to the members of MRF Thozhilalargal Sangam without giving employment to the members of the Sangam.
5. Inasmuch as maintainability of the writ petitions is seriously objected to by the management and had been argued at length by both the parties, I would deal with the said issue at first. In the said context, it would be sufficient to consider the pleadings in W.P.No.20591 of 2001 in which the Sangam had sought for the issue of a mandamus to reinstate 116 workers together with all the consequential benefits.
6. According to the petitioners, the first respondent is a public limited Company incorporated under the Indian Companies Act and is in the business of manufacture of tyres having factories at Thiruvotriyur, Goa, Kottayam, Arakkonam, Medak, and Pondicherry and the writ petition is confined to the workers of the Pondicherry Units. According to the petitioners, about 262 employees are employed for the manufacturing activities of the tyres and apart from them 350 employees are working as a Contract Labourers. Out of 262 workers, at the time of formation of the Union during last week of September,2001, 16 were appointed on probation and about 115 workers were designated as Apprentices and 97 workers called as "under observation" without any designation. They are also doing same work as done by the other employees. Apart from them there are about 350 contract workers out of whom 50 workers are used in House keeping, 25 for packing and five workers in the Engineering Department doing the works of permanent and perennial in nature. With the result, the factory which was started 4-1/2 years ago, does not have as on date, even one permanent worker in the Pondicherry Unit. There was no Union till the petitioner Union was formed. With the result, the workmen have no Trade Union protection. The management was accustomed to do anything they liked with the workmen and the workman was bound to lose his job if he makes any representation. The wages are very low and even less than the minimum wages and they were also required to work beyond eight hours per day to a maximum of 16 hours per day without any overtime benefit. No identification card is given to any employee and the provisions of the Factories Act are not complied with in the context of the wages. No wage slip or overtime slip is given to any worker and their signatures are taken on computer print out at the time of payment of wages. It is further stated that no register for adult workers is maintained. According to the petitioner, the Labour Inspectorate of Government was ineffective and hence the management was able to indulge in major violations of the various Labour/welfare Legislations. The Labour authorities had at no point of time met any worker to find out the actual conditions of labour.
7. It is further submitted that in January, 2000, a representation by eight workmen was made to the respondents in the context of having been abused by a Supervisor. The workers were threatened by the management on the ground that they are attempting to form Union because they had given a joint representation. Among the five dismissed workmen, four workers had raised Industrial Disputes as against their termination and the same was pending before the Labour Officer (Conciliation), Pondicherry. In the month of September, 2001, the management handpicked three workmen and started collecting signatures from the workers to the effect that they are the representatives of the workmen for the purpose of representing them in the proceedings for certification of Standing Orders. The workers feeling that they have suffered for more than four years of injustice due to any lack of a proper representative body, met Mr.V.Prakash, Advocate, obtained his consent for being the President of the Union. On 16.9.2001, the workers held a meeting for the formation of the petitioner Sangam and election of its office-bearers and for discussing the bye-laws of the Union. The office-bearers of the Sangam were elected and bye-laws were also framed unanimously. The President of the Union communicated to the fifth respondent by Fax on 29.9.2001 information about the formation of the Sangam and the election of the Office-bearers and the steps taken for registration of the Sangam. The Sangam also requested recognition and also for an opportunity to discuss about the grievances of the workmen. The management was also requested not to proceed with the certification of the Standing Orders without reference to the petitioner Sangam. The said Fax message was also duly acknowledged as having been received at Fax No.041-3699207. A copy of the same was also hand delivered and duly acknowledged by the Secretary to the Government, Pondicherry, Commissioner of Labour, Pondicherry and other authorities. On the same day, Union also addressed letters to the Chief Inspector of Factories, requesting for Inspection of the factory.
8. Immediately, after the receipt of the communication, the fifth respondent started a series of actions of victimisation. In the meanwhile, the petitioner Union was registered with the Commissioner of Labour on 9.10.2001, the first act of victimisation was to make the Treasurer of the Sangam, Kumaravel, to sign a letter stating that he was leaving the Sangam and to sign a blank paper. He was detained in the factory on 2.10.2001 about 10.00 p.m. and on 3.10.2001 Kumaravel made a complaint to the Sub Inspector of Police. Though no acknowledgement was given, the Inspector - Officers of the respondents who came to the Police Station, admitted that they had demanded a signature from Kumaravel on blank papers.
9. The workmen were upset by spree of victimisation by termination of their services and therefore, convened a meeting and invited the President to come to the meeting on 7.10.2001. The meeting was addressed by the President along with the General Secretary of the M.R.F.Union. Immediately, thereafter on 10.10.2001 the General Secretary was dismissed from service under Order dated 9.10.2001 without any enquiry on the allegations of unauthorised absence. This was objected to by a letter from the President.
10. To the letters of the President, the Chairman and Vice-Chairman of MRF Limited had sent replies stating that the entire issue fell within the jurisdiction of the General Manager of the Factory. It was represented as though they were not concerned with the issues raised by the President. As on the date of filing the writ petition, the management had terminated the service of 116 workmen. It was clear that the management had developed animus against the workmen for forming the Trade Union and therefore, went about indiscriminately terminating the workers in order to create fear psychosis among the workmen. The motive was to cause immediate damage to the workmen for their forming the Union. The intention was to punish the workers and subject them to a long process of Conciliation proceedings, and for eventual adjudication and thereby keeping the workmen out of service and to tire them out. If any workman was prepared to leave the Trade Union, the management was inclined to take back the workman. The workmen are covered under the provisions of the Factories Act and the Industrial Disputes Act and the action of the respondents was a monstrous unfair labour practice by running the entire factory for more than 4-1/2 years even without a single confirmed, permanent workman. It is further stated that the management chose to terminate the workmen only because they had formed a Trade Union in order to raise various issues which they have been suffering at the hands of the employer. It was further stated that though there was an alternative remedy available to the workers under Section 2A and 2(k) under the Industrial Disputes Act, hereinafter called the Act, the termination of the workers being a glaring and monstrous unfair labour practice as laid down under Schedule V to the Act, the above writ petition was being filed.
11. In the counter filed by the respondents, it is contended that the writ petition was not maintainable against a private employer. The respondent/management was not a State as defined under Article 12 of the Constitution of India and was not discharging any public duty or any action that would affect the public. The Supreme Court has so held in V.S.T.INDUSTRIES case and on the said ground alone, the writ petition was liable to be dismissed. The respondent was neither a statutory Corporation; nor a Company administered or owned by any Government or Quasi Governmental body.
12. It is further stated that the reasons for terminating the service of 116 workmen have to be considered in the light of the evidence to be let in before the appropriate authorities by the management both documentary and oral. Therefore, the same has to be considered only by the appropriate forum created under the provisions of the Industrial Disputes Act.
13. The management further claims that it has a Unit to manufacture radial tyres in Pondicherry State which was commissioned in the year 1998. The manufacture of radial tyres and components thereof is a highly technical and complicated one and involving automatic machinery with controls by logistic progress. The respondent has therefore, invested Rs.130 crores and requires further investment of Rs.70 crores. The Unit would be functioning with high perfection, safety and long lasting. 258 employees are employed namely, 16 Probationers, 150 Apprentices and 102 casuals under observation. This was necessary to verify their willingness and to ascertain their basic aptitude. The factory was a new one and licence was obtained after acquisition of lands. Erection of machinery took a long time and after the erection of limited number of machineries, the trial production commenced in the year 1998. The Unit is the only unit manufacturing radial tyres with high tech technology and was new in India. It took sometime to stabilise with the ingenious technology. The apprentices also took time to learn the business and skills with the gadgets. It is not true that all the workers have put in 4-1/2 years of Apprenticeship. They have been inducted during the course of last four years. But from 3.10.2001 the workmen started to reduce the pace of production by resorting to "go slow" and some of them also boycotted the canteen facilities and refused to have lunch. The food served by the Company had to be discarded and thrown away. On 4.10.2001, the workers indulged in ante management slogans written on piece of papers pasted to sticks and put on the food. The repeated advice by the management went unheeded and food was also wasted. The respondents issued notice on 10.10.2001. The direction by the management to the workers to take food supplied by the management went unheeded and therefore, in order to avoid wastage, the management stopped preparing food for the employees. In the mean time, the workers adopted "go slow" method resulting in reduction of production of tyres. In the counter affidavit, a tabular statement has been given showing that the production of tyres at the rate of 1877 as on 30.9.2001 had become reduced day by day, ultimately to 112 tyres as on 20.10.2001.
14. It is further stated that on and from 22.10.2001 the workmen have struck the work without any notice. The workers used to come inside the factory give their attendance to their Supervisors and while away their time by sleeping, playing cards, etc. Repeated advise by the management went unheeded. In the case of six probationers, their probation period had come to an end due to efflux of time. In the case of 43 Apprentices, their apprenticeship was discontinued in accordance with the contract. Considering that from 4.00 p.m. on 22.10.2001, the production has been completely stopped, the management had no other alternative, except to dispense with the services of the casuals numbering about 102.
15. In the counter, the management has also given a list of details of the workmen indulging in unlawful activities from 9.10.2001 to 10.11.2001. The workers were indulging in atrocities and creating law and order situation and causing loss and damage to the property. Apprehending further atrocities by the workers being caused to the plant and machinery and personnel, the management filed a suit in O.S.No.416 of 2001 before the Additional Subordinate Judge, Pondicherry and obtained interim injunction on 29.10.2001. Subsequent to the filing of the writ petition also, considering the prevailing situation a notice dated 29.12.2001 was put up requesting the other apprentices to commence work and to restore normalcy by giving undertaking.
About 20 persons have given their undertaking and resumed work and the respondents have also inducted 28 casuals under observation.
16. The contention that the workers have been terminated because of the formation of the Union was false and denied. The petitioner was put to strict proof of the same. The wages paid to the workers are above the minimum wages prescribed in Pondicherry. It was also not correct that the workers were working beyond eight hours or up to 20 hours and that they are not being paid overtime wages. Inspector of Factories has been making regular visits and had seen the conditions of service. As regards the Fax message, it was true that a Fax was received on 29.9.2001 but only two blank papers were received by respondents on the said date. It was only on 19.10.2001 when the Labour Officer called the fifth respondent for the enquiry, the respondents became aware of the fact that the petitioners have formed a Union in the respondents Company. Respondent is not intolerant to any collective representation. It is also not correct that the respondents had handpicked three workmen during September, 2001 and tried to collect signatures for certification of the Standing Orders. There was no question of any victimisation and the allegation that the Treasurer was asked to sign in a blank paper and a complaint was given to the Sub Inspector of Police, is false. Dispensing with the services of the casuals was necessary as there was no work as a result of the go slow tactics adopted by the workmen. The termination of services of the workmen was not "monstrous" nor amounted to unfair labour practice. The question of permanency has to be agitated before the appropriate forum. It is further submitted that the petitioner Union was trying to dictate the method of functioning of the factory and all the issues raised thereto exposes an attitude to hold the respondents to ransom. Considering that the trial production was a time consuming process, after the Commissioning of the factory, only persons who have been trained and found suitable can be made permanent. Therefore, the formation of the Union had nothing to do with terminating the workers. The respondent has factories in other places where there are Unions and there can be no accusation of the Management trying to curtail the legitimate Union activities. It is further stated that the workmen have an alternative remedy by approaching the authorities under the Industrial Disputes Act. The termination of service does not fall within the definition of unfair labour practice. The attempt on the part of the petitioners seeking direction to commence the penal proceedings against the management without giving an opportunity to the respondent, was without justification.
17. A detailed rejoinder affidavit has been filed by the respondent dealing with the various contentions raised by the management in their counter. With reference to the Fax message said to have been received by the respondent on blank papers, the Union submits that they had received O.K. Receipt from the despatching machine which was being filed along with the reply affidavit. Such a message could not have been received without the respondent having received the message. The respondent had chosen to utter blatant lie about the said crucial fact considering that it was the said Fax message which was responsible for the mass termination as a result of formation of the Union. The contention that the respondent had received only blank Fax message was perjury. The kind of mass termination was never resorted to by the management and therefore, it was clear that the termination was effected not for the reason of expiry of any contract but only because of the formation of the Union. It is further stated that the designation of the workers as adopted by the management was only a device used by the management only to deprive the workers of the benefits contemplated under the labour welfare Legislations. Apprentices, probationers and casuals were also workmen within the definition of workmen under the Industrial Disputes Act. The various allegations in the counter relating to the alleged acts of indiscipline were also denied. It was not correct to state that on 9.10.2001 the workmen in the first shift collected unlawfully and prevented the movement of materials by squatting around the loaded lorry. The other facts relating to the alleged violation of law and order and discipline as stated in the counter have also been dealt with in detail and denied by the petitioner Union.
18. The issue of maintainability as raised by the respondents and as could be seen from the counter by the respondents, is mainly based on a recent judgment of the Supreme Court in VST INDUSTRIES LTD. V. VST. INDUSTRIES WORKERS UNION (2001 (1) S.C.C., 298). Reliance is placed on the said judgment in support of the respondent's contention that no writ would lie against a private person or a private company which is not involved in the discharge of any statutory or public duty. I had occasion to deal with the same issue recently in W.P.Nos.4884 of 2002 etc. batch of cases, - ANAIMALAI NATIONAL ESTATE WORKERS UNION AND OTHERS v. PLANTER'S ASSOCIATION OF TAMIL NADU AND OTHERS) dated 21.3.2002. I had held an analysis of the various judgments, that the judgment in VST INDUSTRIES case, which arose under the Factories Act cannot be applied to cases arising under the Industrial Disputes Act and that the observation in that judgment itself was sufficient to conclude that a writ will issue in cases where either there was a violation of public interest, or statutory duty or the monstrosity of the facts of the case would justify the issue of a writ, then a writ can be maintained. However, considering that in this case, the issue of maintainability was argued by both sides in a more elaborate and extensive manner, I feel obliged to deal with the issue again. Mr.A.L.Somayaji, learned Senior Counsel while raising the issue of maintainability, contends that a writ, especially a mandamus could be issued only when the respondent could be held to be discharging any public duty and not otherwise. Mere violation of any statutory requirements, assuming that there are any violations by the respondent cannot justify invocation of Article 226 of the Constitution of India. I would refer to the decisions cited by Mr.A.L.Somayaji, learned Senior Counsel, chronologically.
19. In PRAGA TOOLS CORPN. v. C.V.I , the Supreme Court observed that the condition precedent for the issue of mandamus is that the person claiming it should have a legal right and to the performance of a legal duty by the person against whom it is sought. It was further observed that a writ will not lie for an order of reinstatement to an office which is essentially a private character.
20. In the case of NATIONAL SEEDS CORPORATION EMPLOYEES UNION v. NATIONAL SEEDS CORPORATION, (1973 (1) L.L.J., 254) a Division Bench of the Delhi High Court held that for an alleged non-compliance of Section 9A of the Act, it may entitle an employee to raise an Industrial Dispute, but will not entitle a claim for mandamus.
21. In GATTAIAH,V. AND OTHERS v. COMMISSIONER OF LABOUR AND ANOTHER (1981 (II) L.L.J., 54) the learned single Judge of the Andhra Pradesh High Court, held that a writ was maintainable against a private management for the enforcement of the statutory duty under the Industrial Disputes Act, if the violation thus complained was referable to a public duty on the part of the respondent/private Company or individual.
22. In WORKMEN OF B & C MILLS & OTHERS v. STATE OF TAMIL NADU (1982 II L.L.J.,90), a Division Bench of this Court held that breach of conditions of agreement under Section 12(3) of the Industrial Disputes Act cannot amount to a violation of any duty in the nature of a public duty and therefore, a writ cannot be issued.
23. In DINESH PRASAD v. STATE OF PATNA & OTHERS (1985 (I) L.L.J., 343), a Full Bench of the Patna High Court held that a reference of a dispute under Section 10 of the Industrial Disputes Act, was an adequate alternative remedy and writ will not be issued in a matter which necessarily involves the need to travel into issues of facts.
24. In ANDIMUKTHA SAATGURU TRUST v. R.GODAVARI & OTHERS , the Supreme Court held that no writ can be issued for specific performance of contract of service or for declaration of continuation of service and a writ can be issued to any person or authority only if he was performing a public duty of a public character.
25. In workmen employed in the Canteen in S.R.F.LTD. v. GOVT. OF TAMIL NADU & OTHERS (1966 (II) L.L.N., 965), workmen employed in a canteen run by a contractor claimed to be the workmen of the Company and prayed for the issue of a writ of mandamus to forbear the Company from dispensing with the service. The Supreme Court held that the writ petition was not maintainable.
26. In ALL INDIA BHARATH OVERSEAS BANK EMPLOYEES UNION v. ALL INDIA BHARATH OVERSEAS BANK (1998 (II) L.L.J., 1181) a Division Bench of this Court held that no writ can be issued against a person (Scheduled Bank) who did not satisfy description of "State" within the meaning of Article 12 of the Constitution of India.
27. In THANIKACHALAM v. MADURANTAGAM AGRICULTURAL PRODUCERS CO-OPERATIVE MARKETING SOCIETY LTD. (2001 Writ L.R., 3), a Full Bench of this Court dealt with the maintainability of writ petition against Co-operative societies and it was held that a writ petition cannot be entertained to circumvent other remedies available under the statute.
28. In V.ANILKUMAR v. T.V.S.SUZUKI (W.P.NO.1760 OF 2000 dated, 24.1.2002) while dealing with the complaints of transfer of workmen/petitioners, allegedly in violation of the fundamental right of the workers as ensured under the provisions of the Industrial Disputes Act, F.M.Ibrahim Kalifulla,J. held that in order to maintain the writ petition, the act complained should amount to violation of a public duty. If not, no writ can be issued and hence, writ petitions were dismissed as not maintainable.
29. In PONDICHERRY PONDS LTD. v. UNION TERRITORY OF PONDICHERRY (W.P.No.10415 of 2001 dated 25.06.2001) a learned single Judge of this Court (K.Raviraja Pandian,J.) had to consider the maintainability of a writ on a complaint of failure to obtain prior permission from the Government under Section 25N of the Industrial Disputes Act, before resorting to lay-off all the workers. The learned Judge following the decision in V.S.T.INDUSTRIES case, held that the writ petition was not maintainable.
30. In M.R.F. EMPLOYEES UNION v. MANAGEMENT OF M.R.F.LTD. (W.P.No.19423 of 2001, dated 15.10.2001), D.Murugesan,J. While dealing with the prayer by the workers to direct the management not to change the conditions of service of the workmen, held that the petitioners had alternative forum to raise the issue and dismissed the writ petition.
31. Now coming to the ruling which is very much relied on by the respondents namely, V.S.T.INDUSTRIES case, (2001 (1) S.C.C., 298), the Supreme Court dealt the situation of the workers employed in a canteen run through a contractor claiming to be the employees of the Company was examined. The Supreme Court held that the Company was not performing any public duty and therefore, no writ petition can be issued. The Supreme Court held that the words "any person or authority" used in Article 226 of the Constitution of India, would mean that the writ was not to be confined only to statutory authorities or instrumentality of the State, but would also cover any person or body performing public duty. However,as the Supreme Court found that the Company was not involved in the discharge of any public duty, writ petition was not maintainable.
32. On the strength of the above decisions, it is vehemently contended on behalf of the respondent that the above writ petition is not maintainable considering that the respondent Company was not involved in the discharge of any public duty or functions.
33. Per contra, in the context of the power of this Court under Article 226 of the Constitution of India, especially in matters arising out of the Industrial Disputes Act, Mr.Prakash contends that the jurisdiction of this Court is not to be limited only as against the statutory authorities, but also against any person or authorities which would include a private individual, private company etc. The various duties and obligations envisaged under the Industrial Disputes Act cast a corresponding legal and statutory duty on the employer to comply with the provisions of the Act and hence, the private managements are amenable to directions under Article 226 of the Constitution of India. Availability of alternative remedy is also not a bar in the face of a monstrous situation created by the employer, of dismissing more than 200 employees from service without notice merely as a result of the workers having chosen to form a Trade Union for themselves, which they are entitled to under law. The conduct of the Company which is running to its full capacity of manufacture of tyres for the past more than three years, yet, there being not a single permanent workman in the establishment, was a further proof of monstrosity and the unfair Labour practice of the employer/respondent. The status of the employee as permanent, temporary or casual or an apprentice can never be left to the will and pleasure of the management to designate the workers in such a manner as to wriggle out from the legal obligations. Their services cannot be thrown out by such autocratic style of functioning by the respondents and all these facts would clearly establish that the situation was grave enough to interfere in these writ petitions.
34. Mr.V.Prakash referred to number of decisions in the context of the above points and I would deal with them at the appropriate stage.
35. I have considered the submissions of both sides in detail regarding maintainability of the writ. As regards the powers of the High Court, to issue prerogative writs under Article 226 of the Constitution of India, the issue has been dealt with by the Supreme Court and the High Courts on several occasions. Before even referring to such rulings, it would be relevant to note the very expressions in Article 226 of the Constitution of India to "any person or authority" and "for the enforcement of the rights conferred by Part III and "for any other purpose". The said expressions would be sufficient to hold that there is no fetter or limitation on the power of the Court to issue a writ as against any class of persons as well as statutory authorities. The power is wide enough to reach any one dealing with any situation for the purpose of enforcing not only the fundamental rights, but also for any other purpose and to enforce legal rights of the citizens and statutory obligations and duties on the part of the Governmental, Statutory authorities, private companies and individuals. The series of restrictions which are enumerated by the various Courts are only self imposed restraints aimed at using the extraordinary power only to deserving situations. There is no difficulty while exercising the power as against the Government, Statutory authorities, Corporations and the Establishments coming within the definition of "State" under Article 12 of the Constitution of India. But when it comes to issuing a writ against private companies, establishments and individuals, the ground for exercising the power are restricted and narrowed down having regard to the extraordinary nature of the power and the availability of alternative remedies. Some of the grounds which would weigh against the exercise of the power are (i) availability of effective alternative remedy (2) absence of any public duty; (3) laches and unreasonable delay in approaching the Court; (4) Need to deal with and adjudicate upon complicated facts which would require detailed evidence oral or documentary etc. These are the factors which would dissuade the Courts from exercising the jurisdiction. But even if these dissuading factors exist, yet the Court can issue a writ, if the situation and interest of justice and public interest warrant interference and the monstrosity of the situation is such that refusal to exercise such power would result in grave injustice.
36. The observations made above are only culled out from the various judgments of the Supreme Court and in fact available from the very judgments relied on by the respondents themselves. Therefore, it would be a misnomer to say that a writ petition is not maintainable except where it is barred under the Constitution itself specifically. In other cases, it is a matter of exercise of discretion by the Court to issue or not to issue a writ.
37. Though the earlier decisions of the Supreme Court prior to and immediately after the Constitution prescribed stringent grounds for issuing writs, the Supreme Court subsequently held that having regard to the far-reaching expressions used in Article 226 of the Constitution of India, there was no justification to look back nor to feel oppressed by the earlier history of the writs in English law vide the judgment of the Constitution Bench of the Supreme Court in T.C.BASAPPA v. T.NAGAPPA .
38. In ROHTAS INDUSTRIES v. ITS UNION the Supreme Court observed as follows:-
"9. (1) (a) & (b):
The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose, even one for which another remedy may exist. The amendment to Art. 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person.' But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."
39. In GUJARAT STEEL TUBES LTD. v. G.S.T. MAZDOOR SABHA (1980 (I) L.L.J., 137), the Supreme Court cautioned against the Indian Courts restricting themselves by traditional limitations in issuing writs. The Supreme Court further observed that the wide sweep of the expressions under Article 226 of the Constitution of India were designedly used and the framers of the Constitution felt the need for a pervasive reserve power in the higher judiciary, to correct wrongs peculiar to the conditions of our Society.
40. We can go on giving a list of precedents and extracts of observations to the above effect as regards the wide discretion and jurisdiction enjoyed by the Supreme Court and the High Courts to issue a writ wherever it is required to undo injustice and to any authority or individual, public or private, subject only to the self imposed restrictions. Even those restrictions are to be ignored if the monstrosity or graveness of the facts and circumstances warrant the extension of the arms of the Court to undo injustice, not only in public interest, but also in contractual matters envisaging statutory or public duty. It would be too simplifying the issue to state that a writ will not be maintainable since the respondent was not discharging public or statutory duties. It would amount to re-writing the law on the subject and ignoring the very tenor and sweep of Article 226 of the Constitution of India. In fact, the very judgments relied on by learned counsel for the respondents hold that a writ will be issued if the claim was based on a legal or statutory right or duty or if the monstrosity of the situation warranted interference. A precedent can be only an authority for what it decides in the factual background of that particular case and cannot be quoted out of context.
41. On facts, in PRAGA TOOLS case, the Supreme Court was concerned with the implementation of two agreements executed under Section 18 of the Act by two rival Unions and one Union approaching the Court questioning the agreement executed by the opposite group and mandamus was sought for restraining the company from implementing it. The issue was purely based on rival claims between the workers owing their allegiance to one Union and the other and there was no transgression of any public or statutory duty. In VST INDUSTRIES case, the issue related to the obligation arising under the provisions of the Factories Act 1946, namely as to whether the employees of a canteen which was being run inside the factory were entitled to be treated as employees of the factory. The Supreme Court held in the negative on an interpretation of Section 46 of the Factories Act and had only restated and reiterated the law on the subject as already decided in the following cases:-
(1) GENERAL UNION v. K.N.DESAI (1990 (1) L.L.N., 181).
(2) WORKMEN OF ASHOK LEYLAND LTD. v. ASHOK LEYLAND & ORS. (1991 II L.L.J., 12).
(3) WORKMEN SRF LTD. v. GOVT. OF TAMIL NADU (1995 (I) L.L.N., 485).
(4) WORKMEN v. ASHOK LEYLAND LTD. (1986 (II) L.L.N., 1035) (from previous judgment).
Of these judgments, it is true that the judgment of this Court in 1995 (1) L.L.N., 485, was reversed by the Supreme Court, but only on the issue of maintainability of the writ petition, without going into the merits of the case, vide the judgment reported in 1996 (2) L.L.N., 965.
42. In all the above cases, the respective High courts held that not only the employees under the contractors of a canteen cannot be treated as employees of the factory, but also held that Section 46 of the Factories Act did not create any obligation on the part of the Industrial establishment to run a canteen by employing its own workmen. As the objects and reasons of the Factories Act themselves disclose, the Act is only a welfare measure aimed at securing better living conditions to the workers and provides for the health, safety welfare and other aspects of the workers in the factories. It would not be appropriate to compare the said provisions with the Industrial Disputes Act which deals with the basic obligations, fundamental rights and duties of both the management and labour.
43. The background in which the Industrial Disputes Act was enacted and the sweep of the said Act have been very effectively stated by the Supreme Court in the following judgments:-
(1) In D.N.BANERJI v. P.R.MUKHERJEE it has been held as follows:-
"It is therefore incumbent on us to ascertain what the statute means by "industry" and "industrial dispute", leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps, doing a particular trade or carrying on a particular business with the help of his own tools material and skill and employing a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organisations of workmen and employers, and when large scale strikes and lock-outs throwing society into chaos and confusion were practically unknown Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to stand still without taking adequate measures by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost."....
"Such widespread extension of labour unrest is not a rare phenomenon but is of frequent occurrence. In such a case, even an industrial dispute in a particular business becomes a large scale industrial dispute, which the Government cannot afford to ignore as a minor trouble to be settled between particular employer and workman."
44. In BALLARPUR COLLIERIES CO. v. PRESIDING OFFICER, DHANBAD the Supreme Court dealt with the scope of the Industrial Disputes Act and held as follows:-
"In this connection it has to be borne in mind that proceedings of industrial adjudication are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger public interest in which the industry as such (including the employer and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrial peace and harmony so as to increase production and help the growth and progress of national economy has to be considered in the background of our constitutional set-up according to which the State has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life and the material resources of the community are so distributed as best to sub-serve the common good."
45. In BANGALORE WATER SUPPLY BOARD v. RAJAPPA (1978 I L.L.J., 349), the Supreme Court held that it is a legislation which protects the labour, promotes their contentment and regulates situation of crisis and tension ultimately affecting production.
46. In LIFE INSURANCE CORPORATION OF INDIA v. D.J.BAGADUR (1981 I L.L.J., 1) the Supreme Court held as follows:-
"The I.D. Act is a benign measure which seeks to pre-empt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infra-structure so that the energies of partners in production may not be dissipated in counter-productive battles and assurance of industrial justice may create a climate of good-will. Industrial peace is a national need and, absent law, order in any field will be absent. Chaos is the enemy of creativity sans which production will suffer. Thus, the great goal to which the I.D.Act is geared is legal mechanism for canalising conflicts along conciliatory or adjudicatory processes."
47. The above are only some of the judgments rendered by the Supreme Court very effectively illustrating the range of the social content of the Industrial Disputes Act and the public interest involved and that it has been enacted in the larger interest of the Society. It is therefore, difficult to treat the provisions of the said Act as a Legislation in the field of private law and relegate the violations of the said Act as not involving a public duty. As observed by the Supreme Court, the Act was a product of social evolution and was meant to meet the changes in the society which would have the effect of throwing the society into chaos and confusion. It would be erroneous to rely on the judgment in VST INDUSTRIES case which was rendered in the context of Section 46 of the Factories Act. In fact in the very same judgment it has been held that even if the offender was a private company or individual, if he indulges in violation of the provisions of the Environmental Protection Act, then Article 226 of the Constitution of India can be invoked. In my opinion, the provisions of the Industrial Disputes Act, depending on the gravity of violations alleged, are no less important as the Environmental Protection Act involving public interest. Therefore, I am unable to appreciate the repeated attempts made on behalf of the managements in case after case as though in VST INDUSTRIES case, the Supreme Court had held that a writ petition will not be maintainable as against a private company or individual, irrespective of the nature of the statutory violations by the management or the monstrosity of the situation arising from said violations.
48. A similar objection which was taken in the context of non-compliance of Section 9A of the Industrial Disputes Act by a private Company and direct approach to the High Court under Article 226 of the Constitution of India was questioned as not maintainable in CHEMPLAST SANMAR LTD. M.C.P.T. SANGAM (2000 (I) L.L.J., 1335). A Division Bench of this Court rejected the said contention of non-maintainability and held that if there was a patent violation of the provisions of the Industrial Disputes Act which would constitute unfair labour practice and alterations of conditions of service without following the procedure under Section 9A of the Act, a writ can be issued. The same view was taken by another Division Bench in VOLTAS VOLKART EMPLOYEES UNION v. VOLTA LIMITED .
49. While considering the very same objections in MADRAS LABOUR UNION v. BINNY LTD. a Division Bench of this Court analysed all the precedents in detail and concluded that a writ can be issued in extraordinary circumstances if the monstrosity of the situation warrants it. The Division Bench held as follows:-
"On an analysis of the above rulings, the following propositions emerge:-
1. A private body which is not a "State" within the meaning of Article 12 of the Constitution of India is not generally amenable to Article 226 of the Constitution.
2. A writ will issue against a private body to protect the fundamental rights declared under part III of the Constitution of India.
3. A writ will issue in extra-ordinary circumstances if the monstrosity of the situation warrants it.
4. A mandamus will be issued against a private body, if there is no equally convenient remedy and if there is public duty.
5. The implementation of a settlement under Section 12(3) of the I.D.Act is not public duty and no writ will lie against a private body.
6. If the features are patent and they establish gross violation of the mandates of law, the jurisdiction under Article 226 of the Constitution could be exercised to quash settlement under Section 18(1) or Section 12(3) of the I.D.Act."
50. A Full Bench of this Court consisting of five Judges in M.THANIKACHALAM v. MADHURANTHANTHAGAM AGRICULTURAL CO-OPERATIVE PRODUCERS MARKETING SOCIETY while considering the maintainability of the writ petition, in the affairs of the Co-operative Societies, held that the exercise of the power under Article 226 of the Constitution of India was discretionary and the existence of the alternative remedy was not a bar to entertain a writ petition and if principles of natural justice are violated or if there was flagrant violation of law or if the monstrosity of the situation warranting.
51. Therefore, I am inclined to hold that it is not possible to conclude that a writ cannot be issued as against a private body or individual even if they violate any statutory provisions. The Court will not generally exercise its discretion to issue a writ if there was an effective alternative remedy or is vitiated by unnecessary delay or latches on the part of the petitioner, but will issue a writ if any of the following circumstances prevail:-
(1) Under extraordinary circumstances if the monstrosity of the situation requires.
(2) To protect violation of fundamental rights under Part III of the Constitution of India.
(3) If there is gross violation of the mandates of law.
52. The existence of an alternate remedy is also not a bar of jurisdiction under Article 226 of the Constitution of India. Even as early as in U.P.STATE V. MD. NOOH (A.I.R. 1958 S.C., 86) the Supreme Court held that the Court declining to issue a writ if any alternate remedy, was only rule of convenience and discretion and there was no bar of jurisdiction, if the impugned action shocks the sense of justice and fair play. It is not necessary to cite a further catena of decisions to support this well settled proposition of law. In a very recent judgment, a Constitution Bench of the Supreme Court in JAIPUR ZILLA BHOOMI VIKAS BANK LTD. v. RAM GOPAL SHARMA arising under the Industrial Disputes Act had to deal with the objection of alternate remedy as provided under Section 33A of the Act in the context of violation of Section 33(1) of the Act. The Constitution Bench was critical of the said stand and observed that a person who contravenes the statutory provision cannot be rewarded by relieving him of the statutory obligations.
53. In the present case before us, undoubtedly the provisions of the Industrial Disputes Act provide alternate remedies and we have to only see whether the acts complained amount to any violation of fundamental rights or statutory or public duties or whether the fact situation is so extraordinary and monstrous so as to ignore the alternate remedy and justify interference by this Court.
54. As stated earlier I had occasion to deal with the same issue in W.P.No.4884 to 4887 of 202 dated 21.3.2002 (ANAIMALAI ESTATE WORKERS UNION & ORS v. PLANTERS' ASSOCIATION OF TAMIL NADU & ORS.) and I have held as above. I have also held that this Court may not be willing to exercise its power if the graveness of the violations of the provisions of the Industrial Disputes Act relates only to a single individual or a small group of individuals, but will have to issue a writ if the situation relates to a large mass of workers involving monstrosity, public interest, public tranquility or law and order problem. There can be no comparison (analogy illustrated by Mr.Somayaji) with violation of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act as between landlord and his tenant which is purely in the field of private-law. Even in the context of the Industrial Disputes Act I have already held that it would depend on the nature of violation and gravity of the situation if it involves large number of employees.
W.P.No.20270 OF 2002
55. In this case, the dismissal of one Ramachandra Reddy, Secretary of the M.R.F. Union is questioned. The grievance of the petitioner Union is that he has been victimised only because he has taken part and addressed the meeting at Pondicherry to support the workers in forming the Trade Union (Sangam) at Pondicherry. He was dismissed without any enquiry and without any show-cause notice. It is further contended that the employee is accorded and entitled to the benefit of duty off as an office bearer which has been in vogue for 30 years and therefore, he cannot be accused of absenteeism. According to Mr.V.Prakash, the dismissal was not on account of absenteeism as it was sought to be made out by the management but really an act of victimisation. Standing Order 14(c) requires that no order of discharge or dismissal shall be passed except after holding an enquiry and the delinquent shall be afforded reasonable opportunity. Therefore, according to learned counsel the action of the respondents amounted to gross violation of principles of natural justice and was also a monstrous one. It is further contended that after the introduction of Section 2(ra) in Industrial Disputes Act, it would amount to an unfair labour practice as enlisted under Schedule V read with Section 25T and 25U and it was not open to the management to dispense with the enquiry.
56. Per contra, Mr. A.L.Somayaji, learned Senior Counsel contends that the there is absolutely no basis for the allegation of victimisation. He would refer to the list of dates and periods during which the delinquent was absent from duty unauthorisedly and such gross violation of attendance was actionable and cannot be justified only on the ground that he happened to be an Office-bearer. Being an office-bearer does not dispense with normal obligations of an employee, nor could it provide an immunity to him to come and go as he likes. He would further contend that it is settled proposition of law that it is open to the management to justify before the Labour Court, the dismissal of a workman even without enquiry, if a dispute is raised by the worker. Such a right of the management cannot be taken away by the delinquent by approaching this Court directly under Article 226 of the Constitution of India. In support of the above contention reliance is placed on some of the judgments of the Supreme Court which I would deal with below. Learned Senior Counsel further contends that the Labour Court would be the appropriate forum where both sides would be free to let in evidence and in a writ petition it will not be possible to do so.
57. In reply Mr.V.Prakash contends that the issue that the management would be entitled to justify the dismissal even in a case where the dismissal was not preceded by any show cause notice, and without enquiry, has been left open by the Supreme Court to be considered in future vide D.C.ROY v. PRESIDING OFFICER, LABOUR & ORS. . He would further contend that subsequent Legislative Amendments to the Industrial Disputes Act and introduction of Section 2(ra), 25T and 25U and enlistment of categories of unfair labour practices under Schedule V had drastically modified the legal position which was the basis for the earlier decisions of the Supreme Court relied upon by the management. Learned counsel also replied on the factual contentions relating to the alleged absenteeism of the delinquent.
58. I have considered the submissions of both sides in detail and on an analysis of the facts and legal issues I am inclined to dismiss this writ petition for the following reasons:-
59. The law laid down by the Supreme court that in a case of dismissal without enquiry or if the enquiry is defective, it will be open to the management to justify its action before the Labour court, is binding on this Court as on date. It is not disputed that in the following judgments, the Supreme Court held this issue in favour of the management:-
(1) PUNJAB NATIONAL BANK v. WORKMEN .
(2) BHARATHI SUGAR MILLS v. SRI JAISINGH & ORS. (1961(1) L.L.J., 644).
(3) MANAGEMENT OF RITZ THEATRE v. WORKMEN (A.I.R.1963 S.C., 293) (4) KALYANI V. AIR FRANCE (A.I.R.1963 S.C., 1751) (5) KHARDAH COMPANY LTD. v. WORKMEN (A.I.R.1964 S.C., 790) (6) WORKMEN OF MOTIPUR SUGAR FACTORY v. MOTIPUR SUGAR FACTORY (7) STATE BANK OF INDIA v. JAIN & ORS. .
(8) BINNY CLOTH AND GENERAL MILLS LTD. v. L.B.SINGH .
(9) WORKMEN v. HIGHER STONE TYRE AND RUBBER COMPNAY .
(10) COOPER ENGINGEERING LTD. v. P.P.MUNDHE (1975 (2) S.C.C., 667).
(11)NEETA KAPILASH v. PRESIDING OFFICER .
60. Notwithstanding the above judgments, Mr.V.Prakash seeks to contend that the question was left open in , supra. It is true that in the said judgment the Supreme Court had observed that the decision in KALYANI's case (A.I.R.1963 S.C., 1751) is not to be considered as a charter for the employers to dismiss the employees after a pretence of an enquiry and that in an appropriate case it may become necessary to carve out exceptions. Even so, it is needless to point out that carving out exceptions to the earlier judgments of the Supreme Court, would be possible only by the Supreme court and not by the High Courts.
61. The further reasoning that the subsequent statutory changes in the Act and the introduction of the provision relating to the unfair labour practice would render the earlier judgments inapplicable or inoperative cannot also be sustained. Though the amendments came into effect in the year 1984, the last of the judgments cited above had been rendered in the year 1999 namely, . In paragraph No.24 of the judgment, it has been unambiguously stated that in cases where the enquiry had not been held or the enquiry has been found to be defective, the Tribunal can call upon the management to justify the action taken against the workmen or to show by fresh evidence that the termination order was proper. Therefore, it is not possible for this Court to hold otherwise. Even if any fresh interpretation is warranted, such a request can be made only before the Supreme Court.
62. Consequently, the dismissal of Ramachandra Reddy cannot be interfered with in these writ petitions only on the ground of absence of show-cause notice or any enquiry. The right of the management to justify its order before the Labour court cannot be ignored.
63. The issue whether the dismissal was warranted or not in the context of the absence of the delinquent from duty and whether such absence from duty was justified or not, he being an office-bearer and whether he was entitled to the benefit of duty-off, are all factual issues to be substantiated by both sides by letting in oral and documentary evidence. In fact, on behalf of the management, a series of wage slips have been filed to justify the action taken by them. A list of dates when he was absent, copies of warning letters, and suspension orders issued against the delinquent are also sought to be relied upon by the management. The petitioner had in fact denied the receipt of such warning letters and is also raising objections on the merits of such contentions by the management. Therefore, it is not possible for the writ Court to go into such evidence and the Labour court is the appropriate forum, and it is up to the delinquent to raise a dispute.
64. In the result, the above writ petition is dismissed.
W.P.Nos. 20591 of 2001 and 19 of 2001
65. Both the above two writ petitions may be taken up together considering the nature of the prayer. While in W.P.No.20591 of 2001, the termination of 116 workers is called in question, in W.P.No.19 of 2001 consequential relief is sought for to restrain the management from recruiting new workers or juniors to the petitioners. The pleadings in W.P.No.20591 of 2001 have already been dealt with above. It is stated that subsequent to the filing of the writ petition also, the spree of dismissals had continued and that by the end of January,2002 about 220 employees had been dismissed.
66. The crux of the grievance of the petitioner Sangam is that the action for dismissals was the result of the formation of the petitioner Sangam and their attempt to open negotiation with the management regarding the working conditions of the employees. Mr.V.Prakash dealt with in detail, the working conditions of employees of the Pondicherry Unit and how the formation of the Union had immediately resulted in termination orders. It was not merely an issue of unfair labour practice, but also a monstrous arbitrary conduct on the part of the management to indulge in such an autocratic action throwing hundreds of employees in the street. It was further monstrous that a big industrial unit could be run even without a single permanent employee and all the employees be treated as apprentices/probationers, for more than four years and in full production capacity.
67. Per contra, even though the contention that there was not a single permanent employee is not denied, the stand of the management as reflected by the pleadings and the argument of Mr.A.L.Somayaji, is that the technology involved in the production of radial tyres is new and complex one. Each employee has to undergo training in each Section as an apprentice before his services could be regularised on the basis of his performance. The termination orders were issued only as a result of either the completion of the period of apprenticeship or probation or the management being not satisfied with the performance of the respective employee.
68. I have considered the submissions of both sides and I am inclined to hold for the following reasons that the situation created by the management is most unconscionable, monstrous and deplorable thus justifying the inference by the Court.
69. The stand of the management trying to justify the position that as on date, there is no single permanent employee is shocking to the judicial conscience. The tyre manufacturing company had commenced production, more than four years earlier and was producing about 2000 tyres per day with full work force till the present disputes arose from 3.10.2001. That such an establishment should have no permanent workman on its Rolls, only betrays the glaring unfair labour practice of the respondent company. The contention that the production of radial tyres involved precision technology requiring each employee/probationers to undergo training or practical experience in each unit for a considerable period, is to be stated not only to be rejected, but also to be condemned as a high handed defence. Even after five decades of Independence and after coming into force of the Industrial Disputes Act, if such state of affairs can prevail, it only reflects very badly on the functioning of the Labour Authorities in Pondicherry State. The radial tyre manufacturing is in vogue in this Country for more than two decades, if not more. It is not a new innovation or technology. Improvisation of technology is a permanent feature and a necessity in a competitive commercial world. Every industry/Company worth mentioning has a Research and Development wing aimed at improving the technology. It is rather strange that the respondent - company should plead that they are using some new cadgets and that therefore their employees should be kept under observation as apprentices and probationers endlessly without any service guarantee and without any single permanent employee and at the same time achieve the production level of 2000 tyres per day. The situation and the stand taken by the management are shocking not only to the judicial conscience but also of any right thinking citizen. It is no answer to say that the respondent/ Company is adhering to all the requirements under various Labour Legislations in their other Units elsewhere in the country and have also recognised Trade Unions in those units. We are now concerned with the state of affairs and facts relating to the Pondicherry Unit. The main reason for the present state of affairs is perhaps attributable to the ineffective functioning of the Labour welfare wing of the Government of Pondicherry and this Court can only hope that the Government of Pondicherry would wake up to the situation. It is settled proposition of law that the status of an employee does not depend only on the designation assigned by the management and it is open to the Labour Authorities to come to a different conclusion on the basis of facts reflecting exploitation or unfair labour practice.
70. The fact that the formation of the Union had triggered the spree of terminations and dismissals is very obvious from the facts and circumstances. It is rather curious and too big a pill to swallow to be told by the respondents that they were not aware of the Meeting of the workers and the election of the President of the Union. The entire problem started with the step taken by the management for the certification of the Standing Orders which was resisted by majority of the workers not being satisfied with the same and the consequential formation of the Union to represent their grievances. They elected their own President and this was communicated to the management by a Fax message on 29.9.2001. The President of the Union had clearly stated that out of 262 workers in the Unit most of whom who had been working for more than 4-1/2 years only 16 had been issued with the orders placing them on probation and the rest of them had not been issued with any order. Certain other allegations of exploitation are also made. After mentioning about the formation of Union and election of the Office-bearers, it is stated that the Union represents 230 out of 262 workers and a request was also made not to proceed with the certification of the Standing Orders. On the same day, copies of the same letter are sent to the Secretary to the Government, Commissioner of Labour, Deputy Commissioner and Assistant Commissioner of Labour and Inspector of Factories. It is rather strange that the management should take the stand that a Fax message was received from Ultra Univars on 28.9.2001, but only two blank papers were received and that the fact of the formation of the Union was known only on 19.10.2001 when the Labour Officer called on the Company. The petitioner had filed a receipt of the despatching machine and the management had not produced before me, the blank papers said to have been received under Fax from Ultra Univars. This raises a normal presumption in favour of the petitioners. As could be seen from the counter of the management itself, a series of incidents of unrest had been witnessed after 3.10.2001 and in fact it is alleged that the workers started adopting go-slow. They had boycotted canteen and shouted anti management slogans. It is also alleged that the workers had illegally prevented the movement of a loaded lorry from moving out of the premises. In the background of all these facts, for the management to say that they were not aware of the formation of the Union, is rather an attitude which deserves to be condemned as amounting to perjury. This is a desperate defence taken by the management in order to cover up the real motive behind the issuance of termination orders.
71. That the stand taken by the management is false is also demonstrated by another circumstance. On 11.10.2001 another Fax message had been given to all the officers of the respondent - Company, dealing with the dismissal of Ramachandra Reddy. A clear reference is made to the communication dated 29.9.2001 and the formation of the Union. No reply has been sent to the said letter dated 11.10.2001 and there is also no denial of the receipt of the same even in the counter affidavit. Therefore, the contention that the respondent was not aware of the formation of the Union and that the Fax message dated 29.9.2001 had not been received by them are blatantly false. The reason for taking such a false stand is obvious. The series of dismissals started from 3.10.2001 and the management has to make it appear that it has nothing to do with the formation of the Union. Therefore, I have no doubt in my mind that the issue of termination orders commencing from 3.10.2001 was the direct result of the formation of the Union which had dared to question the practices of the management in keeping of their employees either as an apprentice or probationer endlessly and had also chosen to raise other issues relating to wages, non-payment of over-time wages, certification of Standing Orders etc. I am unable to accept the stand of the management that the terminations were effected only due to either the completion of the period or due to unsatisfactory performance. In most of the cases of termination, it is seen that either the period had been completed long back much earlier to the order of termination or in some cases, yet to be completed. The facts stated above clearly establish the real reason and motive behind the sudden realisation by the management that more than 200 employees had become unfit to be continued in the job. The right of the workers to form Union to bargain for their rights and to express their grievances are fundamental as guaranteed under Article 19(1)(a) and (c) of the Constitution. It is also a statutory right conferred under the Trade Unions Act. Only to steer clear of this situation, the management had chosen to pretend and plead ignorance of the Fax message dated 29.9.2001 and had chosen to contend that the management came to know of the formation of the Union only on 19.10.2001. This is totally unbelievable. As is well known, a defence of alibi is a dangerous double edged defence, which if not properly established would cut at the root of the bona fides of the defence. That the management should have reacted in a sharp and negative manner throwing more than 200 employees out of service for forming a Union for themselves is highly regrettable and the situation is extraordinary deserving interference by this Court.
72. It is true that the management had pleaded that the work force started to adopt negative attitude of go-slow and in not utilising the Food provided by the management resulting in wastage etc., and the subsequent indulging in law and order problem etc. No Court or any right thinking person can justify rowdyism or unruly behaviour causing damage to the person or property whether it be by the management or labour. This Court will not stand in the way of the management taking severe action as well as criminal complaints in specific cases against such persons. On many occasions, this Court had issued writs at the instance of managements directing the Police to give protection to the Company premises when the workers try to exceed their right of lawful demonstration. In this case, we are concerned with the conduct of the management running the factory without even a single permanent employee on its Roll and mass dismissal of employees which is convincingly traced to the formation of the Union. Even the go-slow which was adopted by the workers is demonstrated to be the result of the negative attitude of the management immediately after the formation of the Union, as could be seen from the statistics provided by the management itself. On 29.9.2001 the Union is started and the production even after the said date, was maintained well namely, 1877 tyres on 30.9.2001 and 1963 tyres on 1.10.2001. It is only thereafter when the management reacted negatively to the formation of the Union and resorted to indiscriminate dismissals, the production came down to 1158 tyres on 3.10.2001 and slowly reduced day by day to 316 on 21.10.2001 and 112 on 22.10.2001. Therefore, the management cannot be heard to rely on the adverse consequences of their own unfair labour practices.
73. Therefore, in conclusion I am of the opinion that the conduct of the management is not only violative of Articles 14 and 19 of the Constitution, but also violative of the statutory rights of the workers to have a labour Union for their welfare and to effectively exercise their bargaining power. The style of functioning of the management in running a factory without even a single permanent employee and to keep more than 260 employees under employment for a long period by calling them as apprentices/ probationers and at the same time could achieve a satisfactory level of production, is a specimen example of unfair labour practice and to dismiss them from service indiscriminately at the stroke of pen for raising protest against such shocking conditions of service and exercising their legitimate right to form the Union, are monstrous and grave enough for this Court to interfere under Article 226 of the Constitution of India. To say that all the employees should go before the Labour Court to vindicate their rights and wait for a long period without any salary, will be denial of timely justice to them. When the motives for the mass dismissal are obvious, this Court would be failing in its duty in not extending its hands to do justice. When termination of service of more than 200 employees have been resorted to and found to be unjust, the writ Court is not powerless to order reinstatement vide judgment of the Supreme Court in B.R.SINGH v. UNION OF INDIA . In fact, in the said case, the Supreme Court entertained the writ petition under Article 32 of the Constitution of India when the services of several workmen were terminated and they were rendered jobless.
74. In the result, I am inclined to allow both the writ petitions, W.P.Nos.20591 of 2001 and 19 of 2001. The dismissed employees shall be entitled to all backwages. It is made clear that the management is at liberty to take such action as may be appropriate if any individual had indulged in undesirable activities. It is also made clear that the dismissed employees shall not be denied reinstatement on the ground that some other person had been appointed in their vacancies. It is further made clear that as regards whether particular employee is to be treated as an apprentice/ probationer or a permanent employee, the aggrieved employees or the management would be entitled to raise an Industrial Dispute. The fact that these writ petitions are being allowed is not a decision on their status, but is only a relief to which the employees are entitled to in the context of the mala fide reasons and arbitrariness behind the issue of termination orders and the background in which the management had acted.
75. In the result, W.P.No.20270 of 2001 is dismissed; W.P.Nos.20591 of 2001 and 19 of 2002 are allowed subject to the above observations. No costs. Connected WMPs. are closed as unnecessary.