J.S. Khehar, J.
1. The petitioner is a company registered under the Companies Act, 1956. It is presently engaged in the production of mirrors, laminated safety glass, insulating glass and toughened glass, at its factory located at Faridabad, where the company has about 300 workers on its roll,
2. The production of the petitioner-company is statedly labour intensive, requiring extreme care and caution on the production line, to ensure an outcome of a good quality product. The rate of rejection in the background of the tough market competitiveness, is very high. Besides the aforesaid, the product is itself very fragile and needs careful and delicate handing. All these factors make the workers in the industry very powerful, because a little stubbornness or obstruction at their hands can result into tremendous losses.
3. It is alleged that the petitioner-Company had the best product quality-wise in the Indian market. It is, therefore, that Saint Gobain, a world famous glass manufacturing company with its headquarters in France, entered into a tie-up with the petitioner-company in 1995. The aforesaid relationship was not destined to last for long and the petitioner-company and Saint Gobain soon parted ways. In the aforesaid process, it is alleged, that the petitioner - company had to lose its plant at Pune to the French company. This break-up allegedly initiated a financial crisis in the petitioner-company, which resulted in erosion of more than 50% of its net worth.The financial problems of the petitioner-company further led to souring of the relationship between the management and the workers giving rise to labour problems. On 2.8.1994, the petitioner-company and Atul Glass Mazdoor Sangh-respondent No.3 (hereinafter referred to as the workers union) had entered into a settlement under Section 12(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The aforesaid settlement was operational for a period of three years i.e., upto 1.8.1997. Under the said settlement, the workers union had agreed not to raise any further financial demand during the period of settlement. It was also agreed, that the workers union would maintain discipline by not resorting to any disruptive activity, such as, strike or slow down. The workers union had also accepted not to resort to any activity which would prejudice to the interest of the petitioner- company. Despite the aforesaid settlement, the workers union issued a demand notice dated 19.4.1996, asking for an increase in their wages, it also raised other demands having financial implications. In view of the superior bargaining power of the workers union, a settlement was entered into between the parties on 8.8.1996. The instant settlement was to be in force upto 30.6.1999 i.e., for a period of about three years. On the expiry of this settlement, the workers union issued another demand notice dated 1.7.1999, which again resulted in a settlement dated 28.2,2000. The instant settlement was for a duration of over just two years i.e. upto 30.6.2002. Under this settlement, the workers union agreed to maintain discipline, production and productivity. The workers union also promised not to indulge in strike or go-slow or any other such or similar acts of indiscipline.
4. On account of the aforesaid financial crisis and the labour unrest, it is alleged, that the losses of the petitioner-company appreciated manifold. The petitioner-company, therefore, approached the Board of Industrial and Financial Reconstruction, New Delhi (hereinafter referred to as the BIFR). The reference made by the petitioner-company was registered by the BIFR in the year 2000 (Reference No.339 of 2000).
5. In August, 2000, the workers union in the petitioner-company again allegedly started resorting to a concerted action for disrupting the smooth functioning in the petitioner-company, by indulging in acts of misconduct and by thwarting production. They are also stated to have started resorting to activities leading to slow down and sabotage. On Account of the aforesaid activities of the workers, the petitioner-company allegedly reached a critical position in October, 2000, which compelled it to put a notice on the notice board on 7.10.2000. The contents of the aforesaid notice are being extracted here-under for facility of reference:-
NOTICE
With deep regret, it is intimated to all the employees that inspite of repeatedly advising by the Management, the employees are not completing their daily production and continue to sit in groups here and there.
The employees are advised to complete their daily work, otherwise the Management shall be compelled to take strict action.
For Atul Glass Industries Ltd.,
Sd/- Manager.
It is alleged that the aforesaid notice had no effect on the workers. Resultantly, the petitioner-pompany put up another notice on the notice board on 10.10.2000. The contents of this second notice are being extracted hereunder for facility of reference.
NOTICE
As all the employees are fully aware that the Company is currently passing through economic recession. All the employees were repeatedly advised to complete their daily production. But inspite of this, the employees are wasting time, by sitting in groups here and there and are offering excuses not to work.
All the employees are once again advised to complete their daily production and maintain discipline,otherwise the Management will be compelled to take strict action.
For Atul Glass Industries Ltd.,
Sd/-Manager.
Since the second notice also allegedly had no effect on the workers, the petitioner-company put up yet another notice on the notice board on 13.10.2000. The contents of the third notice are also being extracted hereunder:-
NOTICE
With deep regret, all the employees are informed by means of this Notice that for the last many days, the employees,under the influence of the Union office bearers, are not giving their daily production and are sitting in groups in the Canteen or here and there and waste their time. If the Supervisors of the Departments ask them to work, then they are abused. Today, the employees are not even allowing the despatch of material and are refusing to load the vehicles. In this situation, the Management has been left with no other option, except to close the Company.
For Atul Glass Industries Ltd.,
Sd/- Manager.
A collective perusal of the aforesaid notices reveal, that the affairs of the petitioner-company had deteriorated tremendously. So much so, that the petitioner-company was allegedly compelled to inform the workers, that if the state of affairs continued in the manner depicted in the notices, there would be no option with the management but to close down the unit. Despite the aforesaid threat, it is alleged, that the attitude of the workers did not change, whereupon, the petitioner-company put up. yet another notice on the notice board on 14.10.2000. The contents of this fourth notice are also being extracted hereunder:-
NOTICE
As all the employees are aware that for the last many days, there is an atmosphere of indiscipline in the Company. The management, by means of various notices issued from time to time, informed the employees to complete their daily production and maintain discipline. Yesterday on 13.10.2000, no material could be despatched, because the employees, who load the vehicles, clearly refused to load the vehicles. Inspite of repeated requests, no vehicle could be loaded and the empty vehicles were sent back Today on 14.10.2000, the employees even threatened that if the material is sent out from the Company, then the management has to face the consequences and since morning, the employees of all the Departments, after leaving their jobs, are wandering here and there and are creating nuisance in the Office and the Factory, as a result of which there is an atmosphere of fear created in the minds of the employees, who are working.
All the employees are advised to give their daily production, by going to their respective Departments and also assist in sending out the finished products.
If the employees do not leave their adamant attitude, then the Management shall be compelled to close the Company, for which you people shall be wholly responsible.
For Atul Glass Industries Ltd.,
Sd/- Manager
The instant fourth notice alleged depicts the desperate state of affairs prevailing in the petitioner - company. It is alleged, that on 14.10.2000 i.e., on the date on which notice extracted above, was displayed on the notice board, all the workers kept roaming in the factory premises and did not attend their duties. They also terrorised the officers. It is alleged, that this action/attitude/behaviour at the hands of the workers of the petitioner -company constitute a strike as defined under Section 2(q) of the Act. It is also alleged, that the aforesaid activities of the workers were in clear violation and contravention of the settlement dated 22.2.2000. In view of the aforesaid circumstances, it is alleged, that the petitioner - company was left with no other alternative but to declare a lock-out. The aforesaid lock-out was declared through a notice dated 16.10.2000. The contents of the notice declaring a lock-out dated 16.10.2000, are being extracted hereunder:-
NOTICE
The workers know fully well that the institution for the last many years, because of business reasons, is running in losses. The Managers, on their own, are making all efforts to strengthen the organization and to ensure that it runs effectively. So much so, even without full work being available, the workers are being paid their full wages, by adopting a sympathetic stand. They are also making efforts to ensure the supply of raw materials. The Managers are also making efforts to secure the interests of the Factory and the workers.
Despite the above efforts of the Management, we have to write with regret that the workers, instead of cooperating in these difficult times, have instead for the last two days, been involved in mass indiscipline and misbehaviour with the senior officers during duty. They have been roaming around in groups here and there and even complaints of consuming liquor in the factory have come. Senior Officers, who have tried to stop this trend, have been threatened with dire consequences. It is also regretfully to inform that on 13.10.2000, no despatch could take place and the workers, who load vehicles, were threatened with beatings. Even the Managers were threatened that if any goods are despatched on 14.10.2000, then they shall have to face dire consequences. So much so, the senior officers were threatened with violence also. The Managers warned the workers against the above illegal act. It is a cause of regret that on 14.10.2000, the vehicle carrying glass was not load and many boxes containing finished glass were broken and misbehaviour and abuses were hurled at the Supervisors. Throughout the day, there was an atmosphere of chaos and lawlessness, due to which workmen terrorized the Management and the staff. A group of workmen entered the office and sat on the chair of the staff and senior officers and misbehaved and abused them. Some workers got Eunuchs (Hizras) Units from outside and created an indecent atmosphere in the office. Because of no power supply, the Generator was shut down at 03.00 PM, due to which no work could be performed in the office and there was darkness in the entire establishment. Workmen created the above circumstances, which include mass indiscipline, chaos, lawlessness, atmosphere of terror and abusing and threatening and forcibly stopping the despatch, misbehaving with the customers coming from outside. Ali these acts were done by the workmen collectively and the representatives of the Labour Organisation had a major role.
The Management has analyzed the whole circumstances created by the workmen in depth and have reached to a decision that in these circumstances, where there is lawlessness, terror and indiscipline and there is terror in the minds of every staff, it is not possible to run the establishment smoothly.
Therefore, the Management is forced to take a decision of lock out.
Therefore, from 16.10.2000, lock-out is declared in the establishment, because this closure is due to the above illegal and unreasonable acts of the workmen, so no wages shall be payable for the period of closure.
This order shall not apply to the employees of the Security Department.
For Atul Glass Industries Ltd.,
Sd/- Works Director.
6. It would be pertinent to mention, that the workers union on its part, was unhappy and suspicious about the activities of the petitioner - company. The workers union filed a civil suit at Faridabad on 11.10.2000, wherein the workers union prayed for a decree for permanent injunction, with the prayer that the petitioner-company (the sole defendant therein) be restrained from removing, the plant, machinery and raw material, lying in the factory premises of the petitioner-company at Faridabad, without paying arrears of wages and bonus etc. to the members of the workers union. The petitioner-company filed its written statement to the aforesaid suit on 19.10.2000. A perusal of the pleadings of the foresaid suit reveals, that it was alleged, that the members of the workers union claimed, that they were discharging their duties peacefully, whilst, the company had not paid them wages. It was also pleaded in the suit, that the management was adamant to shut down the factory and was removing the plant, machinery and raw material from the factory premises. In its response, the petitioner-company had raised the defence, that foreign companies had invaded the Indian market, and as a result thereof, the petitioner-company could not procure sufficient orders. It was, therefore, pleaded that there was paucity of work with the petitioner-company. Paragraph 3 of the reply, on merits, needs to be highlighted, a relevant portion thereof is, accordingly, being extracted hereunder:-.It is denied that for the past many months, wages/salaries are not being given on time or that there has been any delay on the part of the defendant to this effect. It is, however, a matter of record that the defendant is offering leave to any worker, who so desires. However, the plaintiff have failed to disclose the cause for the same. In fact, the defendant is engaged in the manufacture mainly of automobile glass which was being supplied to various commercial automobile manufacture. Because of the influx of foreign companies in the form of joint ventures with the manufactures itself, the orders to outside companies such as the defendant have grossly reduced, resulting in a situation where there is hardly any work available to the defendant. It would also not be out of place to mention here that for the past three months, there has been no regular work available to the defendant and despite the same, the management of the defendant has been regularly paying salaries/wages to its workers and staff irrespective of the fact that by doing so, there is erosion in the capital of the Company. The situation is well known to the workers....
7. The aforesaid suit was disposed of by a settlement between the parties on 19.10.2000. The operative part of the order passed by the Civil Court, while disposing of the aforesaid suit, is being extracted hereunder:
At this stage, Shri S.S. Sharma and Shri S.S. Rao, Advocates, made statement before the Court. In view of the statement made by Shri S.S. Rao, Counsel for the Defendant, they will allow only to take away leased generators and record pertaining to E.S.I., P.F., Central Excise, Sales Tax and Income Tax and they are restrained from selling, transferring or shifting machinery till disposal of this suit. In view of the statement made by Shri S.S. Sharma, Counsel for the plaintiff, they would not stage any illegal 'Dharna' within the radius of fifty meters of the boundary wall of the Company and further would not damage the property of the Company till disposal of this Suit. In view of the statement made by both the Counsels for the parties, ad-interim injunction application on behalf of both the sides moved in the present case, is disposed of.
8. The Labour-cum-Conciliation Officer, Faridabad addressed a communication dated 19.10.2000 to the petitioner-company, as well as, to the workers union, on the subject of lock-out declared by the petitioner-company, and invited them for conciliation proceedings on the aforesaid issue. The petitioner-company submitted a detailed response to the aforesaid letter through a communication dated 10.11.2000. The details of the deliberations conducted between the parties during the conciliation proceedings, have been narrated in the written statement filed on behalf of respondent No. 1. In para 8 of the written statement, it is asserted, that none of the notices (dated 7.10.2000, 10.10.2000, 13.10.2000, 14.10.2000 and 16.10.2000) were endorsed by the petitioner-company to any of the offices of the Labour Department, Haryana. It is also alleged that the petitioner-company never made any complaint, whatsoever, to any of the Offices of the Labour Department, Haryana asserting that the workers union was resorting to any kind of misconduct or slow down or strike etc. affecting the quality and quantity of the product manufactured by the petitioner-company. It is also alleged in para 8 of the aforesaid written statement, that the petitioner-company had declared a lock-out w.e.f. 16.10.2000 in its factory. On 16.10.2000 itself, the workers union submitted a complaint to the Deputy Commissioner, Faridabad, against the lock-out declared by the petitioner-company. In the aforesaid complaint, the workers union had alleged, that no salary was paid to them for the month of September, 2000, although, all the employees had maintained complete peace and had not resorted to any action resulting in any kind of industrial unrest. It was also asserted, that in the lock-out notice dated 16.10.2000, the petitioner-company had levelled false and imaginary allegations against the members of the workers union. In addition to the aforesaid complaint (dated 16.10.2000), 31 persons of the supervisory staff of the petitioner-company had also submitted a complaint dated 18.10.2000 against the petitioner-company to the effect, that they had fully cooperated with the petitioner-company, and that, false and baseless allegations were made against the members of the workers union. In fact, it was specifically asserted therein, that the workers had never disobeyed any orders issued by the supervisory staff. It is alleged by the learned Counsel for the respondents, that all the allegations depicting the basis of the lock-out in the notice dated 16.10.2000 stood completely negated with the contents of the aforesaid two complaints dated 16.10.2000 and 18.10.2000.
9. Pursuant to the aforesaid declaration of lock-out w.e.f. 16.10.2000, and the resultant complaints (dated 16.10.2000, from the worker union; and dated 18.10.2000, from the supervisory staff), the Labour-cum-Conciliation Officer, Faridabad called meetings of the petitioner-company, as well as, the workers union on various dates in October and November, 2000. But, no settlement could be arrived at between the parties. The Labour-cum-Conciliation Officer, Faridabad, therefore requested the Deputy Labour Commissioner, Faridabad, to conduct further conciliation proceedings between the parties. The Deputy Labour Commissioner, Faridabad invited the parties for hearing on 14.11.2000, 20.11.2000, 28.11.2000 and 1.12.2000. Nobody represented the petitioner-company in the first two meetings. On 28.11.2000, an authorised representative of the petitioner-company entered appearance before the Deputy Labour Commissioner, Faridabad; on 1.12.2000, the Managing Director of the petitioner-company appeared before the Deputy Labour Commissioner, Faridabad. Having deliberated on the issue, and having heard the representatives of the rival parties, the Deputy Commissioner, Faridabad, submitted a report dated 16.12.2000 to the Labour Commissioner, Haryana, wherein it was concluded that the management was not interested in any settlement. Accordingly the Deputy Labour Commissioner, Faridabad recommended that further conciliation proceedings should be conducted at the headquarter level. Thereupon, the Joint Labour Commissioner, Haryana, invited the rival parties for further meetings. In the meeting held on 2.2.2001, there were two representatives on behalf of the petitioner-company including the Managing Director of the petitioner-company, whereas, there were three representatives on behalf of the workers union; on the joint request of the parties, conciliation proceedings were adjourned on the aforesaid date to 22.2.2001. On the adjourned date, the representatives of the workers union were present, but no one entered appearance on behalf of the petitioner-company, it is, however, pertinent to notice that a fax message was addressed by the petitioner-company seeking an adjournment. Proceedings of the aforesaid meeting were, therefore, adjourned to 28.2.2001 for which separate communications were addressed to the rival parties. Again on 28.2.2001, only the representatives of the workers union were present, but nobody attended the meeting on behalf of the petitioner-company. In fact, the petitioner-company did not even bothered to make any request for a further adjournment. It was, therefore, sought to be concluded on behalf of respondent No. 1 that while the representatives of the workers union fully cooperated in the conciliation proceedings, the attitude of the petitioner-company was to linger on the matter without any just cause. Accordingly, the issue under consideration, was forwarded to the appropriate government, for further necessary action. The appropriate government examined the matter and arrived at the conclusion, that there existed a dispute regarding the legality and justifiability of the lock-out ordered by the petitioner-company on 16.10.2000. The appropriate government also arrived at the conclusion that there was no strike by the members of the workers union. Accordingly, the appropriate government in exercise of powers vested in it under Section 10(1)(c) of the Act, referred the issue of the legality and justiability of the lock-out declared by the petitioner-company on 16.10.2000, to the Industrial Tribunal, Faridabad-I (hereinafter referred to as the Labour Court) for adjudication by an order dated 27.3.2001. On the same date, by a separate order dated 27.3.2001, the appropriate government in exercise of powers vested in it under Section 10(3) of the Act, prohibited the continuation of the lock-out by the petitioner-company The dispute referred for adjudication reads as under-
Whether the lock-out in M/s Atul Glass Industries Ltd., Mathura Road, Faridabad of the Management w.e.f. 16.10.2000, is legal and justified? If not, what relief the workmen are entitled to?
The aforesaid reference made by the appropriate government to the Labour Court, as well as, the order passed by the appropriate government prohibiting the lock-out declared by the petitioner-company on 16.10.2000 have been impugned by the petitioner-company through the instant writ petition.
10. The first contention of the learned Counsel for the petitioner is that the action taken by the appropriate government through the impugned orders emerges from a complete non-application of mind and must therefore, be considered to be an abuse of the power vested in the appropriate government under Section 10(1)(c) and 10(3) of the Act. In this behalf, the pointed contention of the learned Counsel for the petitioner is that all the assertions advanced on behalf of the representatives of the workers union, have been accepted as a gospel truth, whereas no attention has been paid to the response thereto at the hands of the petitioner-company. In this behalf, it is submitted, that the petitioner-company through a number of notices (extracted above) had highlighted that the members of the workers union were on strike, and that the petitioner-company had emphatically and repeatedly pleaded, that the strike by the members of the workers union be banned under Section 10(3) of the Act. However, no attention, whatsoever, was paid to the assertions made by the petitioner-company, and that the impugned reference was made to the Labour Court arbitrarily, without taking into consideration the pleas raised on behalf of the petitioner-company. It is, therefore, alleged, that the appropriate government had exceeded its powers not only by making a one sided reference, but also by prohibiting the lock-out declared by the petitioner-company on 16.10.2000.
11. In order to substantiate the aforesaid contention, learned Counsel for the petitioner has invited our attention to the decision rendered by the Supreme Court in Pottery Mazdoor Panchayat v. The Perfect Pottery Co. Ltd. A.I.R. 1979 S.C. 1356. The question which came up for adjudication before the Apex Court in the aforesaid case, was summarised in the following manner in para 3 of the aforesaid judgment.:-
Conciliation proceedings having failed, the Madhya Pradesh State Government, on June 26, 1960, referred an. industrial dispute to the arbitration of the Industrial Court under Section 51 of the State Act. The main questions referred to the Industrial Court were-
Whether the proposed closure by the management of the Perfect Pottery Co. Ltd., Jabalpur, with effect from July 1, 1967, is proper and justified? And
To what retrenchment compensation are the employees entitled, if it is decided that the proposed closure is proper and justified?
The relevant observations of the Apex Court while adjudicating the aforesaid controversy, are being extracted hereunder-
Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondents decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunal by the very terms of the references had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.
We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribunals had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected, was decided upon for reasons which were proper and justifiable. The propriety of or justification for the closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts.
On the basis of the observations of the Apex Court extracted above, it is the vehement contention of the learned Counsel for the petitioner, that the activities of the members of the workers union, which were in the nature of a strike, and which were the very basis on which the petitioner-company had declared the lock-out the legality and justifiability of the strike by the members of the workers union should also have been referred for adjudication to the Labour Court. Since the issue of strike had not been referred for adjudication to the Labour Court, the petitioner-company had been rendered defenceless as it had been indirectly precluded from substantiating its defence in response to the impugned reference made to the Labour Court.
12. In sum and substance, the contention of the learned Counsel for the petitioner is that the activities of the members of the workers union, comprised of a series of actions which, cumulatively have the effect of a strike within the meaning of Section 2(q) of the Act. And since, the issue of strike has not been referred for adjudication to the Labour Court, the petitioner-company would not be allowed to lead any evidence on the aforesaid issue. In order to support the aforesaid contention, learned Counsel for the petitioner has placed reliance on the decision rendered in Moolchand Kharati Ram Hospital K. Union v. Labour Commissioner 2001 A.I.R. S.C.W. 2380. In the aforesaid case, the following question was referred for adjudication to the Industrial Tribunal:-
Whether the workmen shown in Annexure 'A' are entitled to wages for the lock-out period vv.e.f. 11.2.1995 and, if so, what directions are necessary in this respect?
The management in the aforesaid case disputed the factum of having declared a lock-out. It was alleged on behalf of the management, that the reference order presumed/assumed/ inferred that the management had actually declared a lock-out w.e.f. 11.2.1995. In the manner in which reference order was framed, it was alleged, that the management would be precluded from leading any evidence to establish, that it had never declared a lock-out. In the background of the factual position noticed above, the plea raised by the management was accepted and the reference order was quashed by the High Court. The determination at the hands of the High Court was upheld by the Apex Court with the following observations:-
In the circumstances, we think the view of the High Court is justified. However, that would not solve the problem of the parties. The proper course to be adopted is to direct first respondent to take appropriate steps to make a reference to the concerned Tribunal after considering all the relevant material on record in the case. Let such steps be taken within three months from today. The appeals stand disposed of accordingly.
13. On the basis of the aforesaid submissions, it is sought to be concluded, that the reference made to the Labour Court lacks judicious consideration, in as much as, the pleas raised by the petitioner -company have been completely ignored, and the petitioner -company has been deprived of raising its principal defence to establish that the lockout was legal and justified.
14. In order to repudiate the first contention of the learned Counsel for the petitioner, it is vehemently contended at the hands of the respondents, that the petitioner - company never addressed any communication to any of the authorities of the Labour Department, Haryana, asserting that the members of the workers union were on strike. It is also pointed out, that the petitioner - company has never made any reference to any call for a strike, or tools down action, at the hands of the members of the workers union. It is also the contention of the learned Counsel for the respondents, that the members of the workers union did not indulge in any indiscipline or misconduct, because even a single member of the workers union has never been charge-sheeted, suspended or dismissed for any indiscipline emerging from any such like activity, from August, 2000 till date. It is also the contention of the learned Counsel for the respondents, that the petitioner-company has never made any complaint to the police department, regarding any indiscipline by the members of the workers union. It is, therefore, vehemently contended by the learned Counsel for the respondents, that a reference at the hands of the appropriate government to the Labour Court on the issue of strike, was clearly uncalled for.
15. In our view, it would be improper for us to record a finding of fact on any of the issues addressed by the rival parties. It is not within our domain to record whether the members of the workers union were on strike, nor is it within our domain to return a finding of fact that the members of the workers union had continued to discharge their duties peacefully. It is also not necessary for us to determine, whether or not, the pleas raised by one of the parties were over emphasised or the pleas of the other party were suppressed. It is, therefore, that we refrain ourselves from venturing into the aforesaid arena. In our view, what needs to be decided, while adjudicating upon the controversy raised by the petitioner-company is, whether it has been prejudiced in raising any defence to substantiate any of its claims before the Labour Court. We have, therefore, ventured to do just that, in the following few paragraphs.
16. According to the learned Counsel for the petitioner, the petitioner-company has no right to lead any evidence on the alleged activities of the members of the workers union depicted in the various notice extracted hereinabove. Since the activities referred to in the notices relied upon by the petitioner-company to establish that the members of the workers union were on strike within the meaning of Section 2(q) of the Act, has not been referred for adjudication to the Labour Court, the petitioner-company has been prevented from raising its defence based on the strike by the members of the workers union. It is not possible for us to accept the aforesaid contention of the learned Counsel for the petitioner. The two judgments relied upon by the learned Counsel for the petitioner, are also clearly distinguishable and would not be applicable to the facts and circumstances of this case. In Pottery Mazdoor Panchayat's case (supra), the reference order itself presumed that the petitioner-company (in the said case) was closed with effect from 1.7.1967, and as such it was pleaded, and justifiably so, that the petitioner - company would be precluded from substantiating, that it had actually never been closed. There is no such presumption in the reference order in the present case, i.e. the reference order does not infer that the members of the workers union were not on strike. As such, there is no restrain on the petitioner-company from leading evidence in the terms proposed in Moolchand Kharati Ram Hospital's case (supra), the reference order presumed a lock-out itself. The reference order was, as such, held to be defective. For just the same reasons, as have been noticed in Pottery Mazdoor Panchayat's case (supra), the instant judgment is also inapplicable to the controversy in hand.
17. In our view, it is open to the petitioner-company to lead any evidence within the terms of the reference. On the basis of which it desires to show that the lock-out declared by the petitioner-company on 16.10.2000 was legal and justified. This would include evidence in connection with the facts alleged in the various notices issued by the petitioner-company, as well as, similar other evidence. In fact, learned Counsel for the respondents have unambiguously expressed, that the petitioner-company cannot be precluded from leading any evidence on the basis of which it seeks to establish the legality and the justifiability of the lock-out declared by it on 16.10.2000. It is, therefore, not possible for us to accept that the petitioner-company has been prejudiced in the manner alleged. In the backdrop of the aforesaid conclusion, the assertion at the hands of the petitioner-company, that the pleas raised in its defence had not been considered at all, pales into insignifance. In view of the above, we find no merit in the first contention of the learned Counsel for the petitioner.
18. The second contention of the learned Counsel for the petitioner is linked to the first contention. It is submitted by the learned Counsel for the petitioner, that a lock-out declared as a consequence of an illegal strike, is deemed to be legal.In order to substantiate the aforesaid contention, learned Counsel for the petitioner has placed reliance on Section 24(3) of the Act, which inter alia, postulates that a lock-out declared in furtherance of an illegal strike, shall not be deemed to be illegal. For the aforesaid proposition, learned Counsel for the petitioner has placed reliance on the decision rendered by the Supreme Court in Delhi Administration, Delhi v. Workmen on Edward Keventers : (1978)IILLJ209SC . It is not possible for us to accept the aforesaid contention advanced on behalf of the petitioner-company, for absolutely the same reasons, as have been recorded by us on the first contention advanced by the learned Counsel for the petitioner. We, therefore, hereby clarify that in law it is open to the petitioner-company to lead evidence pertaining to the reference made by the appropriate government to the Labour Court on 27.3.2001, including the right to establish that the lock-out was ordered on account of the activities of the members of the workers union, which allegedly amounted to strike within the meaning of Section 2(g) of the Act. In case such, a defence is raised by the petitioner-company, and the petitioner-company leads evidence to substantiate the same before the Labour Court shall record its conclusions thereon in accordance with law.
19. The third contention of the learned Counsel for the petitioner is, that no written demand notice by the workers union, and in the absence of any written demand notice, it was natural to infer/presume, that there was no industrial dispute between the parties, and as such, the appropriate government was not justified in making the impugned reference to the Labour Court. In so far as, the third contention of the learned Counsel for the petitioner is concerned, the answer thereto clearly emerges from the decision of the Supreme Court in Shambhu Nath Goyal v. Bank of Baroda 1978(1) Labour Law Journal 484, wherein the Apex Court declared the legal position as under:-
The union filed statement of claim. The Bank of Baroda in its written statement raised a preliminary objection that as no demand in respect of Shri S. Goyal was made upon the management, there was no industrial dispute in existence and, therefore, the reference made by the Government under Section 10 of the Industrial Disputes Act was incompetent. There was another preliminary objection with which we are not concerned in this appeal. The first preliminary objection found favour with the Industrial Tribunal which upheld the contention that as no demand either oral or in writing was made by the concerned workman before approaching the conciliation officer, there was no dispute in existence on the date of the reference and, therefore, made by the Government was incompetent.
Section 2(k) defines industrial dispute as under:-
Industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.
A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written cause is not a sine qua non unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice.
The key words in the definition of industrial dispute are 'dispute' or 'difference'. That is the contention of these two words. In Beetham v. Trinidad Cement Ltd. All. K.S. 244 at 249 Lord Denning while examining the definition of expression 'Trade dispute' in Section 2(1) of Trade Dispute (Arbitration and Inquiry) Ordinance of Trinidad observed.
By definition a 'trade dispute' exists whenever a 'difference' exists and a difference can exist long before the parties became locked in a combat. It is not necessary that they should be sperring for an opening'.
Thus, the term 'industrial dispute' connotes a real and substantial difference having some element of presidency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section.
In view of the clear expression of the legal position by the Supreme Court in Shambhu Nath Goyal's case (supra), that the existence of an industrial dispute does not depend upon a written assertion at the hands of one of the parties, and that, as soon as the workers and the management are at variance with one another, and their differences are connected with their employment, or non-employment, or the problems of employment, or with the condition of labour, an industrial dispute is deemed to have arisen. In view of the above, It is not possible for us to accept the third contention of the learned Counsel for the petitioner. We are satisfied, that in the facts and circumstances of this case, the appropriate government was justified in referring the instant dispute between the parties for adjudication by the Labour Court even in the absence of a written demand from the workers.
20. The last contention of the learned Counsel for the petitioner-company was that the reference order itself be set aside on account of the delay at the hands of appropriate government in making the said reference. It is pointed out that the appropriate government delayed the reference by a period of six months, by which time the company, for all intents and purposes, had been finished. In this behalf, it was submitted that in the present circumstances, after having had to incur recurring expenses as the production line had ceased to move, there is no scope, to ever revive the company. In the peculiar circumstances of this case, learned Counsel for the petitioner having invited our attention to the provisions of Sections 23, 24, 27, 28 and 29 of the Act, vehemently contended, that prosecution should have been initiated against the members of the workers union, and it was wholly unfair and unjustified for the appropriate government to make the impugned reference to the Labour Court. It is not possible for us to accept the instant contention of the learned Counsel for the petitioner-company which in our view is primarily based on emotion, rather than a proposition of law. The facts delineated in paragraph 9 of the instant order reveal, that a delay in making the reference, if any, rests squarely on the shoulders of the petitioner-company which for reasons best known to it, the petitioner-company did not cooperate with the authorities engaged in the process of conciliation. In so far as, the initiation of prosecution against the members of the workers union is concerned, as of now, it is not even clear, whether the members of the workers union are even guilty of having participated in the activities which can collectively be described as a strike within the meaning of the provisions of the Industrial Disputes Act. Be that as it may, the written statement filed on behalf of the official respondents, brings out that the petitioner-company never addressed any of the notices, which have now been relied upon to substantiate its claim, to the Government or any authority of the Labour Department, Haryana, so as to bring to their notice, that the members of the workers union were on strike or were indulging in activities which would collectively amount to a strike within the meaning of Section 2(q) of the Act, details in this behalf have been narrated in the written statement filed on behalf of respondent No. 1 which have been noticed in paragraph 14 of the instant order. For the aforesaid reasons, it is not possible for. us to accept the instant contention of the learned Counsel for the petitioner-company.
21. No other submission was advanced on behalf of the petitioner-company besides those already noticed hereinabove.
22. Dismissed.