1. By this petition filed under Art. 226 of the Constitution of India, the petitioners are challenging the correctness of the order dated July 20, 1979 passed by the Industrial Court, Bombay, refusing to grant interim relief restraining the respondent Nos. 1 and 2 from enforcing the lock-out.
2. The petitioners are a trade union registered under the Indian Trade Unions Act. The respondent No. 2 is a limited company registered under the Companies Act and employs about 2,800 employees including journalists and non-journalists in their establishment at Bombay. The petitioners claimed that about 1,500 employees are the members of their union. The respondent No. 2 is the General Manager of respondent No. 1 - company while respondent No. 3 is another trade union having certain membership in the concern of respondent No. 1. About 575 employees working with respondent No. 1 are the members of respondent No. 3 - union. There is a rivalry between the petitioners' union and respondent No. 3 - union and the applications for recognition by both the unions are pending before the competent authority. It is required to be stated, both the unions are claiming majority support.
3. The respondent No. 3 - union addressed a letter to the management on May 21,,1979 and informed the employer that unless the demands made by respondent No. 3 are not acceded within a certain time, the employees would go on an indefinite independent strike from June 11, 1979. The letter addressed by respondent No. 3 - union is not in compliance from June 11, 1979. The letter addressed by with the requirements of S. 24(1)(a) of the Maharashtra Recognition of Trade Unions and Preventions of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act'). In pursuance of this letter, the employees claiming allegiance to respondent No. 3 - union struck work on June 11, 1979. The petitioners claimed that about 350 workers have joined this strike, while it is the claim of respondent No. 1 that 575 workers have joined the strike. The petitioners immediately addressed a letter to the employer on June 14, 1979 requesting the management to commence proceedings against respondent No. 3 - union the striking employees as provided under the Act. The company did not take any action but gave a notice, of lock-out on June 25, 1979. This notice, inter alia, states that the undertaking would effect a lock-out in all departments at Bombay with effect from July 6, 1979. This notice, further states various reasons for effecting a lock-out but dominant reason is the illegal strike commenced by about 575 employees from June 11, 1979; for their demand of interim rise in wages of Rs. 150.
4. On the publication of this Notice on the Notice Board, the petitioners' union had filed a complaint under the provisions of S. 28 of the Act before the Industrial Court, Bombay, on June 28, 1979. By this complaint, the petitioners claimed that the action of the management in proposing to declare a lock-out amounts to an unfair labour practice under Items Nos. 1(b), 2, 3, and 6 of Schedule II and Item No. 5 of Schedule IV of the Act. It is the claim of the petitioners that the lock-out has been proposed by the employer in collusion with respondent No. 3 - union, and the action taken by the management is entirely uncalled for as the majority of the workers are willing and, in fact, working in the establishment. Along with the complaint, the petitioners filed an application claiming interim relief restraining the respondents Nos. 1 and 2 from giving effect to the proposed lock-out from July 6, 1979. The application for the interim relief was resisted by the respondents Nos. 1 and 2, inter alia, claiming that the proposed lock-out was perfectly justified under the provisions of the law and the action of respondent No. 3 - union in going on an illegal strike has compelled them to declare a lock-out. It was also urged that the majority employees in the three crucial departments of rotary, binding and stereo have struck work and that has paralysed the entire establishment.
5. The Industrial Court, realising that the whole action was invited by an act of respondent No. 3-union, directed that respondent No. 3-union should be joined as a party to the complaint and accordingly, after hearing the contention of respondent No. 2 rejected the application for interim relief. The Industrial Court came to the prima facie conclusion that the strike declared by respondent No. 3-union was illegal; that respondent No. 3 wields majority in the three key sections and the strike has brought to stand-still the entire machinery of the establishment. The Industrial Court further held that the workers of respondent No. 3 are adamant and as their action has paralysed the whole working and their strike being illegal, the management was entitled to effect lock-out. The Industrial Court also held that the notice of lock-out was in conformity with the provisions of the Act and the rules have been substantially complied with. The order is under challenge in this petition.
6. Mr. Deshmukh, the learned counsel appearing in support of the petition, contended that the entire approach of the Industrial Court is erroneous and the Industrial Court has erroneously held that the management was entitled to declare a lock-out. The learned counsel contended that the management has not taken any steps against the respondent No. 3-union and has straightway enforced the lock-out and is proposing to throw out majority of the employees out of work. Mr. Deshmukh further contended that the notice of proposed lock-out was invalid and has not been properly served on all the employees. According to the learned counsel, the proposed lock-out by the employer is illegal and the management is required to be restrained from enforcing it as the balance of convenience lies entirely in favour of the majority employees.
7. Mr. Bhatt, the learned counsel appearing on behalf of the respondents Nos. 1 and 2, on the other hand, contended that on the findings recorded by the Industrial Court, the respondent No. 3-union has gone on an illegal strike and that gives a right to the management to declare a lock-out. Mr. Bhatt also contended that the notice of lock-out was valid and rules of service are substantially complied with. Finally, it was urged that the order passed by the Industrial Court is at an interim stage and does not call for an interference in these proceedings under Art. 226 of the Constitution of India.
8. In view of these rival contentions, the crucial question which falls for determination is whether the petitioners are entitled to an interim relief of restraining the respondents Nos. 1 and 2 from effecting lock-out during the pendency of complaint before the Industrial Court. The Industrial Court has recorded a finding, albeit prima facie, that out of the total employees only about 575 employees have joined illegal strike, and the majority of employees in three departments, viz., rotary, stereo and binding, having joined the strike, the three being key departments, the entire establishment has come to a stand-still. These findings are not very seriously disputed by the petitioners but it is urged that the management has taken no steps against the defaulting workers and has straightway resorted to weapon of lock-out, which really should be employed as a weapon of last resort. An attempt was also made to suggest that conduct of the employer right from the date illegal strike by few employees suggest that management is in collusion with striking employees and step of lock-out is a result of such collusion. It is urged that management ought to have filed complaint against respondent No. 3-union and sought injunction against the defaulting workers but instead of taking that step, what is being done is giving stick to employees who are willing to work.
9. It is desirable at this stage to have a look at the relevant provisions of the Act rewarding the illegal strike and the lock-out. The provisions are contained in Chapter V of the Act and S. 24 defines the expression 'illegal strike and lock-out'. Item 1 of Schedule III of the Act declares illegal strike as an unfair labour practice and S. 28 enables the employer to file a complaint against such practice before the competent Court. Section 30 sets out the power of the Court in dealing with such complaints and sub-s. (2) of S. 30 empowers the Court to pass interim orders including directions to the person to withdraw temporarily, the practice complained of. Item 6 of Schedule II declared act of employer in proposing or continuing a lock-out deemed to be illegal under the Act as an unfair labour practice. The expression 'lock-out' has been defined under S. 2(1) of the Industrial Disputes Act as 'the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him', and the meaning of that expression is applicable in constructing the provisions of the. Act in view of the provisions of S. 3(18) of the Act.
10. It is now well-settled that the lock-out can be described as antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their demands, a lock-out is, a weapon available to the employer to force thee employees to see his point of view by coercive methods. It is necessary that in the struggle between the capital and labour, neither side should make indiscriminate and hasty use of weapon in their hands. It will not be right for either parties to commence strike or enforce lock-out with impunity without exhausting reasonable avenues for peaceful achievements of their objects. The idea of enactment is to maintain industrial peace and it is well-accepted that as for as possible the employees should not be thrown out of work, because that creates a social problem and by stoppage of production the interest of society also suffers.
11. With this backdrop, if the problem in hand is viewed, it is clear that it raises a larger issue as to whether the majority of employees should be thrown out of work for, the default of few, and more so, when the employer has taken no steps against these defaulting employees though permitted by law. The management in the present case could have filed complaint against respondent No. 3-union and secure interim relief compelling the striking employees to temporarily withdraw the strike. In fact, the petitioners have suggested the management to adopt that course by letter dated June 14, 1979, annexed 'Ext. A' to the petition. The employer did not think it prudent even to reply to the letter but rushed to give lock-out notice. In fact, in the return filed to the petition, the employer pleads that in the establishments of Ahemadabad, Delhi and Calcutta lock-out was declared forthwith but in Bombay, it cannot be swiftly done in view of the provisions of the Act requiring fourteen days notice. The respondents Nos. 1 and 2 also claim that it is their inherent right to declare lock-out and it is not bound to adopt proceedings to declare strike as illegal or compel the few striking employees to return to work. This attitude of the employer reflects unawareness of the modern principles governing the relations of master and servant. In the changing milieu, it cannot be overlooked that industry is run not only for the benefit of employer and employees but for an unseen and uncared for third force, represented by society at large. That requires that an employer must take reasonable steps to enable smooth running of industry and only after the failure to achieve that goal, the last fatal step of lock-out should be restored. The employer in the present case has not taken any action whatsoever against the few striking employees before giving notice of lock-out and in these circumstances, the allegation of collusion cannot be said to be without foundation. Because of inaction on the part of the employer, in my judgment, the allegation of the petitioners requires investigation and it would not be proper to make complaint redundant by refusing interim relief.
12. The management stated in the return that after the filing of the present petition, the employer did file a complaint in appropriate Court against respondent No. 3 on July 23, 1979 and the same is pending hearing. Both the petitioners and respondents Nos. 1 and 2 stated before me that they are keen that interim order directing striking employees to resume work should be passed. The respondent No. 3 has not appeared before me though duly served. It is earnestly hoped that, in case interim order is passed in complaint filed by respondents Nos. 1 and 2, then respondent No. 3 union and its members would respect such order and resume work. Mr. Bhatt contended that striking employees would not obey the orders of the Court and taking individual action against them would be very cumbersome and expensive. I am not prepared to assume that such situation would arise.
13. As only a small section of employees are on illegal strike while the majority is willing to work, in my judgment, the use of weapon of lock-out by employer, without adopting proceedings against striking employees is not just and proper. I am conscious of the finding that majority of employee in key sections are on strike and that has resulted into paralysing of industry, but the offer of remaining employees to successfully run the three departments deserves consideration. In this view of the matter, it would be just and convenient to grant interim relief to the petitioners.
13-A. It was argued on behalf of the petitioners that notice of lock-out is not legal as the requirements of rules and regulations framed under the Act are not complied with, nor the service has been effected on all employees. The employer challenged the correctness of submission and both the sides relied upon certain decisions to substantiate their claim. In my judgment, it is not necessary to record any finding on that issue at this interim stage, as even assuming that notice was valid, the petitioners could not be denied interim relief pending the hearing of main complaint.
14. Mr. Bhatt submitted that Industrial Court has recorded a finding on material available and the order is in accordance with law and this Court should not exercise jurisdiction under Article 226 of the Constitution of India and disturb the same. I am taking a contrary view but I am not disturbing any of the findings of fact recorded ny the Court below. I am conscious that I am not sitting in appeal over the order, but the error in refusing interim relief is so apparent, that the interference is absolutely necessary.
15. The petitioners claim that balance of convenience is entirely in their favour and refusal of relief would throw several employees out of work and their families to the hardship of starvation in these days of rising prices, while on the other hand, the grant of relief would cause no prejudge to the management as the company is in very sound financial position and has made huge profits, last several years. The respondents Nos. 1 and 2 claimed for the first time in the return, that Rs. 25 lakhs would be required to be paid every month. There is a dispute as to the accuracy of figure but it can hardly be doubted that balance of convenience is in favour of the employees, who are willing to work. The Industrial Court has also found that lock-out will not solve the problem but would deprive the wage-earners of their daily bread. Mr. Bhatt submitted that even striking employees are attending the office but are not doing any work and there is a reasonable apprehension in the mind of the employer that violence will be erupted and machinery damaged, if lock-out is not declared. Mr. Deshmukh rightly placed reliance on two letters written by police authorities in this connection to contend that apprehension is unfounded and imaginary. It hardly requires to be stated that several precautionary measures are available to the employer and lock-out is not an answer, even if the apprehension is reasonable.
16. The Industrial Court has rightly invited the attention of concerned authorities, by observations in paragraph 13 of the order, to take immediate steps to solve the stalemate and I am in total agreement with the same. I propose to grant interim relief to the petitioners, but also direct the Industrial Court to dispose of the main complaint filed by the petitioners within six weeks from to-day. It would be desirable if Industrial Court hears the complaints filed by the petitioners and respondents Nos. 1 and 2 together.
17. Accordingly, I make the rule absolute and restrain the respondents Nos. 1 and 2 from declaring lock-out and/or giving effect to the notice of lock-out, issued on June 21, 1979, during the pendency of complaint (ULP) No. 148 of 1979 before the Industrial Court, Bombay. The Industrial Court shall dispose of the complaint within 6 weeks from to-day and if possible, along with the complaint filed by respondent Nos. 1 and 2 against respondent No. 3. In the circumstances of the case, there will be no order as to costs.