The Ymca Institute of Engineering Through Its Director/Principal Shri D.R. Malhotra Vs. Presiding Officer, Industrial Labour Court-ii and ors. - Court Judgment

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labour and industrial - enhanced compensation - determination of - respondents are management of an institute and petitioners are workmen - respondents declared partial lockout due to behaviour of petitioners towards respondents and prevented them to resume duty - petitioners filed an application in court and sought claim to extent of 100% of wages - court granted 50% of wages for period in which they were not allowed to join their duties - hence, present petition by petitioners to enhance wages - held, partial lockout was not unjustified as there was misbehaviour by petitioners - hence, petitioners can not claim for the period in which they resumed their duties - further, petitioners were rightly granted 50% of wages for period in which they were unjustly prevented from resumption of work - thus, court order upheld - petition dismissed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - ..9. there is nothing like a partial lockout against a section of workmen and that too, only against of non-teaching staff. the labour court was, therefore, perfectly justified in exercising jurisdiction to award wages.k. kannan, j.i. scope-1. both the writ petitions arise out of the same order of the labour court, faridabad disposing of an application under section 33c(2) of the industrial disputes act, 1947 filed by sh. a.k.chowdhary and 38 others against m/s y.m.c.a. institute of engineering, faridabad. by order dated 5.1.1989, the claim was awarded in favour of the workmen to the extent of 50% of wages. the writ petition no. 2439 of 1989 is at the instance of the management and writ petition no. 16575 of 1989 is at the instance of the workmen in so far as it disentitles them to the whole claim as sought for by them and admits of only 50% of the wages.2. the question that fell for consideration before the labour court and which is urged by the respective counsel is the entitlement or otherwise of the workmen to claim wages during the period when mere was alleged to be a lockout. now to facts:ii. factual background3. on 4.5.1983, the respondent-management declared a partial lockout in the institute that was confined only to the non-teaching staff, though some of the employees of the non-teaching staff did not bear the brunt of the lockout. this was in response to an incident that was alleged to have taken place on 2.5.1983, when according to the management, three of the workmen had assaulted a person by name d.r.malhotra and right from that day, the management had prevented the workmen to join duty to the forenoon of 11.10.1983. as stated above, this lockout was not clamped against all the non-teaching staff and some of them had even been permitted to resume duty earlier after getting some form of undertaking from them. the petition was resisted by the management on the ground that a claim under section 33c(2) itself was not maintainable for there existed no prior adjudication regarding their entitlement to such amount before they applied to the labour court. the proceedings under section 33c(2) is in the nature of execution of a right, which is already determined and an adjudication regarding their entitlement to wages for a prior period where they were supposed to have been kept out of employment was not possible to be undertaken under section 33c(2). on a demand notice issued on 12.10.1983 with copy addressed to conciliation officer of the area for necessary action, the government of haryana had rejected all the demands and had reserved only demand no. 2 that pertained to grant of revision of pay-scales for the non-teaching employees and that was referred to the tribunal for adjudication. adverting specifically to demand no. 1 terming the partial lockout w.e.f. 4.5.1983 to 11.10.1983 as being illegal and the deduction of wages as arbitrary, mala fide and ultra vires, the response of the government was that there was no justification for the demand since the workers could take up their claims for wages in the lockout period even before the labour court or before payment of wages authority.iii. findings by the labour court4. the labour court placed at the doorsteps of the workers and the management equal culpability and that it was to be apportioned roughly half and half between the parties. consequently it awarded 50% of the wages for the period when the workers were found to be not allowed to join duty. while passing the order, it adverted to the fact that sh. r.p.arya, who was one of the parties before this court and who was also the representative of the workers gave ex.m/29 dated 3.10.1983 expressing regret for the incidents and assuring the management not to resort to any agitation.5. adverting to the contention on behalf of the management that the labour court was not competent to entertain the petition, it observed that the government itself had replied vide ex.w-127 dated 23.07.1985 that the union was at liberty to file its claim before the court and that was sufficient for the workers to apply to the court under section 33c(2) of the industrial disputes act, 1947.iv. contentions on behalf of management:6. learned senior counsel appearing on behalf of the management referred me to the fact that the point of reference was only with regard to demand no. 2 that pertained to the application of revised scales of pay for non-teaching staff and that was not simply adjudicated at all by the labour court. demand no. 1, which related to the alleged illegality of the partial lockout and for non-payment of wages had not been referred at all and a mere statement that a claim could be adjudicated before court or before the payment of wages authority would not enable a labour court to entertain a claim under section 33c(2) without there being an adjudication earlier that the lockout was illegal or a reference to that effect directing such adjudication. he also would urge as regards jurisdiction issue, the labour court omitted to make reference to several decisions, which were cited before it and in particular, he referred to the decisions of the hon'ble supreme court and of this court that lay down that labour court cannot decide the entitlement as incidental to its powers and compute the claims under section 33c(2) in the absence of prior adjudication or recognition by the employer. municipal corporation of delhi and ganesh razak and anr. : 1995 i l.l.j. 395 was a case where the daily rated/casual workers of delhi municipal corporation claimed parity of wages on the basis of equal pay for equal work with regular employees and applied under section 33c(2) to which the hon'ble supreme court responded by pointing out that in the absence of a prior adjudication or recognition of the employer of such right, the application under section 33c(2) itself was not maintainable. chief superintendent, government livestock farm, hissar v. rakesh kumar 1998 iii l.l.j. (supp.) 187 was a case where the hon'ble supreme court held that the provision of section 33c(2) could not be invoked in cases where the entitlement itself was disputed. the same view found affirmation also in the decision of this court in gurminder singh and ors. v. batala co-operative sugar mills ltd. and anr. 1997 iii l.l.j. (supp.) 695 and of the decision of the calcutta high court in gouranga dhar and ors. v. state of west bengal and ors. 1997 iii l.l.j. (supp.) 827.7. the objection regarding the entitlement of the petitioner to resort to action by the only observation that the government in its reference had stated that the petitioners could have the remedy before the authority was, according to learned senior counsel for the petitioner, not sufficient to vest in the court a jurisdiction, which the labour court did not posses. section 7 of the industrial disputes act, 1947 that constitutes the labour court, empowers it to take up the industrial disputes relating to any matter specified in second schedule and the adjudication relating to the illegality or otherwise of the lockout and the entitlement of wages was one of the specified items in second schedule that could be taken for adjudication only on due reference from the government. there was an inherent flaw in taking up issue relating to a matter, which was not even referred to for adjudication before the labour court. if such a power could be sourced to the manner of disposal made by the state in directing that the workers could have the remedy before the labour court but at the same time it did not make a reference in so many words, the flaw ought to have been rectified by the workers resorting to appropriate action either by means of-a writ petition before the high court or applying for review of the decision taken by the government not to make a reference with reference to demand no. 1.v. basis for invoking section 33c(2).8. i am of the view that the workman ought not to be rendered without any remedy at all on the admitted facts. the matter relates to a dispute that arose in the year 1980 that adverted to an adjudication for wages for a period of five months and the workmen were not allowed, to resume duty. as a general proposition, a labour court would exercise jurisdiction only to already adjudicated right of wages under section 33c(2) of industrial disputes act. however, it -would be unduly restricting the tenor of language of the sub-section and emasculating its efficacy if the dispute by the management is a moonshine and could not be countenanced by a bare look at the defence. in this case, admittedly, the management had not declared any lockout in the manner contemplated by the provisions of industrial disputes act. in the statement of the management as culled out in the award of the labour court, it was pointed out..it so happened that on 03.02.1983 employees had held meeting in the institute lobby during working hours creating a lot of disturbance and accordingly one circular was issued directing them not to do so but without any effect. finding no way out, the management had pointed out that institute might be closed for them. it has been alleged that on 09.02.1983 workers had assembled in the institute lobby from 9.30 to 10.30 a,m. and then from 3.30 to 3.45 p.m. and provocative speeches were delivered and undesirable slogans were also raised. as a result of that senior officers were intimated and that had disturbed the teaching work also and that was pointed out to the union but they had paid a deaf ear to the request. to control he situation matter was brought to the notice of state government and local administration was directed to extend full cooperation to restore normalcy and to avoid demonstration, slogans shouting and causing disturbance to the teaching of the students. again it so happened that on 22.03.1983, certain visitors were present in the institute campus and union members had assembled in the corridor and had raised slogans, shoutings and using highly abusive language and they had followed the outsiders up to the conference hall and accordingly a serious protest was lodged with the union. it is alleged that the said union had started non-cooperation movement/dharna, relay hunger strike and fast unto death also and it was advised to discontinue the same but without any gain. it is pointed out that union had threatened on 02.05.1983 to go on hunger strike from 6.5.1983 at the residence of chairman, board of governors also. on 02.05.1983 union members had raised highly provocative, indecent derogatory and abusive slogans against the directors and he was held in duress also and an attempt was made to break open his office door and then only a letter of warning for a lockout was issued on 03.05.1983. notwithstanding the above said union had adopted a tough attitude and threatened to continue dharna strike etc. and then only in compelling circumstances, respondent had declared a partial lockout w.e.f. 04.05.1983 debarring members of non-teaching staff union from entering the institute premises.the claim made is that it had declared a lawful lockout after proper warning and due notice and as such, applicants are not entitled for any wages since they had not worked during the said period. objection has also been raised about the jurisdiction of labour court as matter in dispute has not been referred to it by the state government. it is also pointed out that applicants are not entitled to receive any money or benefit and labour court is not competent to declare the said lockout as illegal, once since it is not within its jurisdiction....9. there is nothing like a partial lockout against a section of workmen and that too, only against of non-teaching staff. a partial lockout is not merely a misnomer but also a brazen illegal act that does not afford to the management to fend off workmen and keep them at bay. if the government had not made a reference on demand no. 1 it did not mean that it condoned the action of the management. on the contrary, it did something more. it assumed the illegality of partial lockout as too manifest to require adjudication and counseled that the workman could put up their claim for wages for the lockout period either before the labour court or the payment of wages authority (vide ex.p-5). of course, the language of the government's response was not happily worded but that could not be held out against the interest of labour.in sahu minerals and properties ltd. v. presiding officer, labour court : (1976) 3 s.c.c. 93, the hon'ble supreme court has held, 'section 33c(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employer (underlining mine)'. further, the hon'ble supreme court has also held, in the context of powers of court under section 33c(2) in fabril gassoca v. labour commissioner : (1997)3 s.c.c. 150, that the rights conferred under section 33c(2) are wider than the ambit and operation of section 33(1) and in addition to any other mode of recovery. the workmen's right to apply for wages during a 'partial lockout', which is a legal oxymoron, cannot be doubted by the only fact that the right was denied by the management. the labour court was, therefore, perfectly justified in exercising jurisdiction to award wages.'vi. conclusion.10. the quantum of their entitlement was the only area of adjudication and the labour court was justified from the conduct of their representative expressing regret for the incidents, in apportioning the workmen's culpability to 50% and striking out 50% of wages. if the partial lockout by the management was illegal, perhaps it was not wholly unjustified. the workman had literally forced the issue to the unsavoury pass that they had arrived at. the labour court had applied the scales even and has awarded 50% of wages during the period, when the workmen were unjustly prevented from resumption of work. the award of the labour court is, under the circumstances justified and no interference is called for.11. the writ petition: are consequently dismissed. no costs.