DEVIDAYAL ROLLING MILLS Vs. ENGINEERING WORKERS UNION

JUDGEMENT

(1.) All these three petitions treated to be under Article 227 of the Constitution raise a common challenge and that is the judgment and order dated 10/4/1996 rendered by the learned Member of the Industrial Court at Mumbai whereby Complaint (ULP) No.587 of 1992 came to be dismissed as infructuous and Complaint (ULP) No.1111 of 1992 was partly allowed holding that the employer - company had committed unfair labour practices under Items 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971 (for short "the Act") by declaring illegal the lock-out from 21/4/1992. Consequently the company was directed to pay the lock-out wages to the 41 workmen concerned in the complaint from 21/4/1992 to 3/2/1993. The amount deposited towards the lock out wages was directed to be adjusted against the arrears. The first two petitions have been filed by the employer - company whereas the third petition has been filed by the complainant - Union.

(2.) Some of the relevant and undisputed facts leading to these petitions are that the company was employing about 41 workmen on its rolls and there was a settlement signed between the parties from time to time and last such settlement was dated 20/4/1987. On 4/4/1992 the company issued a notice of lock out (Form J) under Section 24(2) of the Act read with Rule 23 and as per the said notice the lock out was to commence from 21st April 1992. The Union by its letter dated 6/4/1992 objected to the said notice and refuted the allegations made in the notice of lockout against the workmen - Union. On or about 20/4/992 the Union filed Complaint (ULP) No.587 of 1992 under Item 6 of Schedule II and Items 9 and 10 of Schedule IV of the Act and challenged the lockout notice. While the said complaint was pending before the Industrial Court, the company issued a notice of closure on 4/2/1993 and the factory thus came to be closed down. In the mean while on or about 12/8/1992 the Union filed yet another complaint registered as Complaint (ULP) No.1111 of 1992 under Items 9 and 10 of Schedule IV of the Act. The said complaint was on the basis of the Union's apprehension that the lock out so continued would result in the closure of the company and, therefore, by the subsequent complaint directions were sought for payment of full wages from 21/4/1992 till the lifting of the lock out and to restrain the company from removing / shifting / selling machineries including all equipments and tools and also from selling / disposing of the factory premises or in any way transferring its tenancy rights pending the final disposal of the complaint. In the event of the closure of the factory the directions were sought to deposit all the legal dues such as notice pay, retrenchment compensation, gratuity, provident fund etc. and other earned wages and dues of the workmen in the Court pending the final disposal of the complaint. The subsequent complaint came to be amended after the lock out notice was issued as per the order passed by the Industrial Court below Exhibit U-16 on 19/4/1995. It was prayed to declare the closure as illegal as it was in breach of the mandatory provisions of Section 25(O)(1) of the Industrial Disputes Act, 1947. In support of this prayer it was contended that the other establishments of the company at Reay Road and Delhi establishment as well as the factory at Aurangabad were required to be treated as one unit on the basis of the functional integrality and if so held the closure of the company was without seeking permission of the State Government and more so when the total strength of the workmen in all the three units was more than 100. The Union also complained of breach of the requirements of Section 25-FFA of the I.D.Act. Needless to mention both the complaints were opposed by the company by filing Written Statement. On behalf of the Union Shri P.R.Krishnan, Secretary was examined, whereas on behalf of the company Shri Abhay Murlidhar Patole, Production Manager / Works Manager was examined before the Industrial Court. In the Complaint (ULP) No.587 of 1992 the following issue was framed:

(3.) By the impugned common judgment the Industrial Court held that the Union could not prove the allegations of unfair labour practices under item 6 of Schedule II as well as Items 9 and 10 of Schedule IV of the Act in so far as the notice of lock out was concerned. This finding implies that the Court rejected the challenge to the lock out notice as being illegal. Further, the Court proceeded to hold that the company was not guilty of the breach of the requirements of Sections 25(O) and 25(N) of the I.D. Act. Based on its findings on Issue no.(c) regarding the functional integrality of the three establishments the Industrial Court held that the establishment at Sayani Road was a separate establishment within the meaning of the Act and, therefore, the company was not required to apply and obtain permission for closure under Sections 25(O) and 25(N) of the I.D. Act. The Industrial Court further held that the closure declared by the company could not be held to be illegal and on the contrary the Court observed that the closure effected by the company was perfectly legal. The Industrial Court proceeded to consider whether the workmen concerned were entitled for the lock out wages till the date of the closure and as per the Industrial Court this was a crucial question. It recorded a finding that the company was forcing the workmen to do additional work of the absentee workmen and that it amount to unfair labour practice within the meaning of Items 9 and 10 of Schedule IV and even if some isolated individual cases were there during the last about thirty years where the workmen were working voluntarily for eight hours continuously in place of absentee workmen, it could not be treated that they were willingly doing so and in fact they were doing so under the economic compulsions and it could not be treated to be as a matter of custom or practice under any existing settlement or award. The Industrial Court further went to observe that though the lockout notice was not illegal, the company's action of lock-out from 21/4/1992 to 3/2/1993 was illegal and unjustified. The company has, therefore, challenged the common judgment and the Union claims in Writ Petition No. 2037 of 1999 that the lock out effected by the company from 4th February 1993 ought to have been held as illegal.