Engineering Workers Association vs Radium Creation Ltd. & Ors.

1 This petition challenges an order passed by the Industrial

Court at Thane on a complaint of unfair labour practice. The complaint was in respect of Item 6 of Schedule II of the Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices Act, 1971, i.e. against a lockÂout proposed and continued by the management, deemed to

be illegal under that Act.

2 The Respondent company issued the lockÂout notice on 5 July 2014 and declared the lockÂout effective from 20 July 2014. Immediately after the

notice was issued, the Petitioner union filed the present complaint, alleging an illegal lockÂout and claiming a perpetual injunction. The union applied

for an interim order, which was declined by the Industrial Court. That order was confirmed by this court in a writ petition filed by the union. The union

thereafter carried the matter to the Supreme Court. The Supreme Court, by an interim order, directed the Respondent employer to deposit in court

wages of workmen corresponding to the period of lockÂout and till the date of its interim order. In pursuance of this order, a sum of Rs.1.40 crores

was deposited by the Respondent employer in court. The lockÂout was thereafter lifted by the employer on 22 July 2015. The complaint thereafter

came for final disposal before the Industrial Court. The court held the lockÂout to be legal and directed the amount deposited by the Respondent

employer to be refunded. This order has been challenged by the union in the present petition.

3 Learned Counsel for the Petitioner union submits that what the Industrial Court had to decide in this case was not merely the legality of the lockÂ​out

but also its justifiability. Learned Counsel submits that though this lockÂout may have been legal at the inception, its continuance for an indefinite

period, by way of a subsequent act on the part of the employer, amounts to an unjustified lockÂout. Learned Counsel relies on a judgment of the

Supreme Court in the case of Statesman Limited vs. Their Workmen1976 AIR SC 758 as well as the case of Maharashtra General Kamgar Union vs.

Balkrishna Pen Pvt.Ltd. 1987-II-CLR-374(Bom) decided by a Division Bench of our court in support of her submission. Learned Counsel also

relies on the observations made by the Supreme Court whilst disposing of the special leave petition after ordering deposit of wages during the lockÂ‐

out period. Learned Counsel submits that the Supreme Court accepted the submission advanced before it that the entitlement of workmen to these

benefits would depend upon whether the lockÂout was legally valid and justified. The court noted that this finding was yet to be recorded by the

Industrial Court. The court directed the amount deposited before the Industrial Court to be utilized for disbursement in favour of the workmen subject

to the condition that each one of them filed before the Industrial Court an undertaking to the effect that in case the court “records a finding that the

lockÂout was legal or justified and that finding is finally upheld by the appellate/revisional authorities the amount so received shall be refunded back to

the companyâ€. Learned Counsel submits that in the present case, despite these specific directions of the Supreme Court, the Industrial Court desisted

from framing any issue of justifiability. Learned Counsel submits that in fact the Industrial Court expressly declined to consider the question of

justifiability as part of its judicial exercise whilst disposing of the complaint.

4 As for the law on the point, it is important to note that Item 6 of Schedule II of the MRTU and PULP Act refers to a lock out “deemed to be

illegal under this Actâ€. The concept of “deemed illegality†is to be found in Section 25 of that Act. Section 24 of the Act defines 'illegal strike' as

also 'illegal lockÂout'. SubÂsection (2) defines an 'illegal lockÂout' to be a lockÂout which is commenced or continued in the manner provided in

clauses (a) to (g) thereof. Section 25 then provides for a reference to a Labour Court for a declaration that the strike or lockÂout is illegal. Where the

employer of any undertaking proposes or commences a lockÂout, the State Government or the recognised union or, where there is no recognised

union, any other union of the employees in the undertaking, may make a reference to the Labour Court for a declaration that such lockÂout is

illegal. Under Subsection (5) of Section 25, where any lockÂout declared to be illegal under this section is withdrawn within fortyÂeight hours of such

declaration, such lockÂout is not deemed to be illegal under the Act. If not so withdrawn, it would be deemed to be illegal and a complaint of unfair

labour practice can be entertained in respect of it. In other words, the provisions of MRTU and PULP Act require the Industrial Court to entertain a

complaint only when the court declares a lockÂout to be illegal under that Act and within fortyÂeight hours of such declaration, such lockÂout is not

withdrawn by the employer.

5 In this scheme of things, the court under the MRTU and PULP Act merely considers the aspect of legality of a lockÂout with reference to clauses

(a) to (g) of SubÂsection (2) of Section 24 thereof. It does not consider the other and wider aspect of justifiability of the lockÂout. That wider

question may fall for consideration before a labour court or an industrial tribunal in a reference made to it under the Industrial Disputes Act. It may

declare the lockÂout to be illegal, if it is for any reason unjustified. The leading authority on the jurisdiction of the Court under the MRTU and PULP

Act to consider justifiability of a lockÂout is the case of Modistone Limited vs. Modistone Employees Union2001-I-CLR-1009 . The Division Bench of

our court in that case clearly held that the question of justifiability of reasons can be gone into only in an industrial adjudication by seeking a reference

under Section 10 of the Industrial Disputes Act, and not in a complaint under the MRTU and PULP Act. The employees have an option to either seek

a reference under Section 10 of the Industrial Disputes Act or to go under the MRTU and PULP Act. If, however, they choose to go under the latter

Act, the Court deciding their complaint of unfair labour practice can only decide whether the lockÂout is legal or illegal, i.e. whether it is in

accordance with the provisions of MRTU and PULP Act. As part of this exercise, the court may even decide whether the reasons stated in the

notice of lockÂout are nonÂexistent or sham or irrelevant, i.e. nonÂgermane to the employerÂemployee relationship. However, it cannot go into the

question of sufficiency or adequacy of the reasons and in that sense decide generally the question of justifiability.

6 The judgment of Statesman Limited (supra) cited by learned Counsel for the Petitioner does consider justifiability of a lockÂout. It does hold that a

lockÂout may be justified at its commencement, but its continuance beyond a certain period may be unreasonable and therefore, unjustifiable. It is,

however, important to note that that case was decided under the provisions of the Industrial Disputes Act and, as this court has explained in Modistone

case (supra), that question, it cannot be gainsaid, can always be considered by an Industrial adjudicator on a reference under Section 10 of the

Industrial Disputes Act.

7 What the case of Balkrishna Pen Pvt.Ltd. (supra) decides is that there is no need for a Labour Court to declare illegality of a lockÂout on a

reference under Section 25(2) of the MRTU and PULP Act for the lockout to be teated as 'deemed to be illegal' upon it not being withdrawn within

fortyÂeight hours of such declaration; the Court whilst entertaining a complaint of unfair labour practice itself, while deciding the case of deemed

illegality, may first decide illegality of such lockÂout and thereafter give fortyÂeight hours' time to the employer to withdraw the lockÂout and if it is

not so withdrawn within fortyÂeight hours, declare the lock out to be “deemed illegal†and give relief on the workmen's complaint. The case is no

authority for the proposition canvassed by the Petitioner union, namely, that in a complaint of unfair labour practice under Item 6 of Schedule II of the

MRTU and PULP Act, the court can go into the aspect of justifiability of the lockÂ​out.

8 It is true that the Supreme Court, whilst disposing of the special leave petition, expected the Industrial Court to decide whether the lockÂout was

“legally valid or justifiedâ€. It is, however, clear, to my mind, that the word “justified†used by the court, in the present context, would imply a

legal justification, as may be permissible for the court to consider in a complaint of unfair labour practice filed under Section 28 read with Item 6 of

Schedule II of the MRTU and PULP Act and not any and every justification, which may be gone into in a reference of an industrial dispute.

9 Accordingly, there is no merit in the petition. The petition is dismissed.

10 At the request of learned Counsel for the Petitioner, learned Counsel for the first Respondent states that the first Respondent shall not apply for

refund of the amount deposited by it before the Industrial Court for a period of six weeks from today. The statement is accepted.