K.K. Desai, J.
1. This petition under Article 227 of the Constitution of India arises out of the award of the Industrial Tribunal dated December 14, 1965, whereby the Tribunal held in favour of the workmen of the 2nd respondent-Company that the lockout declared by the Company from January 13. 1964, was Illegal, and even so. In connection with the question of relief which the workmen claimed it held that the lockout was justified and the workmen would not be entitled to any relief The Tribunal further held that 114 workmen whose services were terminated from April 18, 1964; without any enquiry made in that connection, were not to 'go slow' (Production) and, in spite of notices dated January 9, 1964, and January 12, 1964, refused to give an undertaking demanded by the Company that they would not resort to go-slow tactics, that they would behave in a disciplined way and that they would give proper production to the satisfaction of the management. The finding was that as this reasonable demand of the Company was not complied with, the discharge of these 114 workmen was justified and they were not entitled to be reinstated.
2. In this petition, the main contentions made by Mr. Singhvi for the workmen are:--
(1) Where a lockout is declared to He illegal, it is a necessary consequence-that, in respect of the period of lockout, the workmen must be paid their wages. It was not permissible in law for the Tribunal to make a finding in respect of the illegal lockout that it was justified and on that footing reject the claim of the workmen to payment for the period pf the lockout.
(2) Where workmen are discharged from service without any enquiry as regards their alleged misconduct or otherwise, the relief of reinstatement is the right of the workmen. This right should have been accepted by the Tribunal infavour of the workmen and since the finding was that enquiry in respect of their misconduct or otherwise had never been held, the. relief of reinstatement should have been granted.
3. Now, in connection with these contentions, the facts which require to be noticed are as follows : In connection with the charter of demands dated May 21, 1962, made by the workmen, a settlement dated September 13, 1962, was made between the parties. Clause 7 of the settlement provided:
'7. That during the currency of this settlement, there shall be no strike or go-slow by the workmen in furtherance of their dispute/disputes and the company shall not resort to either lockout or closure of any department/departments during pendency of the dispute/ disputes of workmen as unfair labour practice.'
Under clause (4), the parties agreed to go to arbitration if any industrial disputes arose between them during the pendency of the agreement. There was a second settlement dated February 20, 1963, with which we are not concerned.
4. The Company's case is that, in respect of the above settlement dated September '13, 1962, the workmen continuously made agitations in respect of imaginary grievances and resorted to 'go-, slow' (production) tactics, and the Company was suffering losses. In connection with these disputes, the Company suspended one Ranjan from service on January 7, 1964. Partly by way of demonstrating their solidarity with Ranjan and partly to record their resentment against the violation of the terms of the settlement, the workmen resorted to organised 'slow down of production', in any event, as from January 1964. The 'Company, therefore, by a notice dated January 9, 1964, served upon all the workmen, recorded that as from December 14, 1963, the workers had slowed down the production in breach of the agreement dated September 13, 1962. The workmen had wilfully and deliberately almost stopped the production from the evening of January 8, 1964, without any reason whatsoever. This had affected the Company's position in respect of its production and was resulting in loss of credit with the customers. The Company drew attention of the workmen as regards the law declared by the Tribunals in connection with the go-slow production technique adopted by workmen . and gave notice that if the full production was not restored forthwith, the Company would be constrained to take necessary steps. The workmen continued their tactics of 'go-slow' (production) and they fatted to give .any response tothe above notice. The Company accordingly gave second notice dated January 12, 1964, and after recording all the relevant circumstances recorded that the. Company had concluded that it was not in the interest of the . Company and its staff to keep the factory open. There was danger to the property of the Company and to the lives of their loyal employees. It was stated that the factory would be closed with effect from January 13, 1964, unless an undertaking was given by the workmen that they would behave in a disciplined way and observe the discipline in the factory and also give, proper production to the satisfaction of the management.
5. There was no appropriate response to the above notice and the factory of the Company was closed from January 13, 1964. On April 18, 1964, 114 workmen were discharged from service. Reference dated December 31, 1964, was made ' to the Industrial Tribunal in respect of the following demands:--
'1. Whether the lockout declared by the management from 13th Janu-' ary 1964 is legal and justified? If not, to what relief are the workmen affected by the lockout entitled?
2. Whether the termination of the 114 workmen in the factory from the 18th April- 1964 is legal and justified? if not, to what relief are the workmen entitled?'
6. The Tribunal held in favour of the workmen that the lockout was illegal; it was not merely closure. In arriving at that finding, the Tribunal held in favour of the Company that the immediate cause for lockout was deliberate and organised go-slow on the part of the workers. The Company had demanded from, the beginning from the workers an undertaking that they would give proper production and maintain discipline. The workers failed to give undertaking as demanded by the Company till April 18, 1964, when the services of 114 workmen were terminated. The long duration of the lockout was due to the workers' intransigence and their refusal to give an undertaking -about production and maintenance of discipline. There was no doubt that the workers had taken up a very hostile attitude against their employer. The Company's refusal to lift the lockout and allow the workers to work was dictated by prudence. It further held that there was no justification for trying to compel the management to listen to their demands by resorting to go-slow and persisting in it. In such a case one cannot blame the Company because it did not display super-human patience and resorted to lockout.
7. Having made these findings, the Tribunal held that the lockout was justified. In consequence,, under demand No. it was not held that the workmen were entitled to any relief in respect of the period of lockout.
8. The question which is raised on behalf of the workmen does not relate in our view, to the question of the lockout being illegal but to the question of the Company having proved facts which absolved the Company from payment of any wages to the workmen for the period of the lockout. When the Tribunal held that the lockout was justified it was aware that the lockout was illegal. The word 'justified' was used by the Tribunal in connection with the question of relief which the workmen should be entitled to for the period of the lockout. Now, it is true that, in law, what is illegal can never be held to be justified, but it is not true that the consequence of a lockout being declared illegal must be that, for the period of that illegal lockout, workmen must be entitled to payment of wages. It is true that, ordinarily, when workmen are, against their consent and desire, not allowed to enter factory premises, it should be held in their favour that, for the period during which, against their consent and desire, they are not allowed to enter the factory, they should be entitled to wages. It is at the same time permissible for an employer to prove that an illegal lockout was the result of such misdemeanour and misconduct of the workmen as left. no option to the employer but to declare a lockout. It is permissible for an employer in connection with claims made against him for wages for the period of an illegal lockout, to prove misdemeanour and misconduct of employees sufficient to absolve him from the liability to pay wages for the period of such illegal lockout. That was the correct question which arose for decision before the Tribunal. In connection with that question, the Tribunal made findings of facts which we have already recited above.
9. The question is whether, having regard to the facts which were found by the Tribunal, the contention made by Mr, Singhvi for the workmen that, even so, the Tribunal was not entitled to hold that the Company was absolved from the liability to pay any amount for the period of the lockout, is not in accordance with law. It appears to us that the question was similar to ordinary questions which arise in claims between employers and employees for payment of wages and in connection with specific performance of contracts between two parties to a contract. Non-performance by one of the promisees can always be justified by referring to the failure of the promisor to do the needful for carrying out of the contract. The findings of facts made by the Tribunal were to the effect that because of certain provisions in the Industrial Disputes Act the lockout must be held to be illegal; but the lockout was the result of misdemeanour and misconduct of the workmen, which went to the length of endangering the lives of loyal workmen and officers of the Company. It had the effect of destroying the .credit of the- Company with its customers. It had the effect of heavy financial losses to the Company. If these factors are not sufficient to destroy the claim of the workmen for payment of wages, the award of the Tribunal on demand No. 1 can be set aside. In our view, however, the Tribunal was right in coming to these conclusions and negativing the first demand made on behalf of the workmen. The first contention, therefore, fails.
10. In rejecting th.e claim for reinstatement made in the second demand, the Tribunal followed the decision of the Supreme Court in the case of Workmen of Motipur Sugar Factory (Pvt.) Ltd. v. Motipur Sugar Factory (Pvt.) Ltd.. : (1965)IILLJ162SC . Now, the findings of the Supreme Court in this case are clearly against the legal proposition sought to be contended for on behalf of the petitioners in their second contention. In that, case, the workers having resorted to go-slow tactics, the Company had faced a serious financial situation and terminated the services of its workmen without any enquiry in that connection. On the evidence before it, the Industrial Tribunal in that case held that the workers had resorted to go-slow tactics and that could justify the discharge of workers from service without any enquiry. The Supreme Court held that if the go-slow was proved and the employer's demand that the workers should give an undertaking that they would give proper production was not complied with, the employer would be justified in refusing to raise the lockout and in dispensing with the services of the workmen without any enquiry in that connection. The Supreme Court' upheld the Tribunal's decision that the workmen of the Company in question were not entitled to relief of reinstatement or compensation.
11. Mr. Singhvi contends that distinction between the present case and the case before the Supreme Court is that, in .that case, the lockout was not declared to be illegal. The lockout being legal, the Supreme Court had made the findings mentioned above. He submits that as. In the present case, the lockout was illegal, ' it must be held that the workmen could not be discharged from service without a departmental enquiry and were entitled to reinstatement. It appears to us that there is no justification in this submission. In our view, even if the lockout in the case before the Supreme Court had beenillegal, .the Supreme Court would have proceeded to decide the case before it and made the findings in the manner it has done. The distinction sought to be made by Mr. Singhvi is not of any importance and would not have made any difference to the decision of the Supreme Court. The Tribunal's award on the 2nd demand was, therefore, correct.
12. On both the contentions made on behalf of the workmen, they have failed. Petition dismissed. Rule discharged. No order as to costs.
13. Writ petition dismissed; Rule discharged.