V.P. Tyagi, J.
1. The Jaipur Spinning & Weaving Mills Ltd. Jaipur (hereinafter called the petitioner company) has filed this writ petition against the State of Rajasthan, he Inspector General of Police, the Superintendent of Police Jaipur, the Station House Officer, Police Station, Bani Park, Jaipur and the District Magistrate, Jaipur, praying that a writ of mandamus or any other appropriate writ, order or direction be issued directing respondents NoSection 1 to 5 to perform their statutory duties under the provisions of the Police Act and the Code of Criminal Procedure to take appropriate legal action against respondents Nos. 6 to 33 and their associates who are committing criminal trespass and other offences in or near the mills of the petitioner company, and they may further be directed to remove the criminal trespass over the mill's premises immediately. It may be mentioned that the petitioner had impleaded Certain workmen as respondents Nos. 6 to 33, but Mr. Gupta, appearing on behalf of the petitioner company, made a request on 25th of September, 1972, that since no relief has been sought against the workmen, who are respondents Nos. 6 to 33, their names may be deleted from the array of respondents. This Court accordingly ordered that the names of respondents NoSection 9 to 33 be deleted Thereafter Mr. M.L. Shrimali filed an application on behalf of the Suti Mill Mazdoor Ekta Samiti (hereinafter called the Samiti) stating that the Samiti is a registered trade union of the workmen of the textile mills of Jaipur and represent all he workmen including those who were impleaded as respondents Nos. 6 to 33 and it was, therefore, necessary to implead the Samiti as a respondent to this petition to place the viewpoint of the workers before this Court The Court, after hearing the counsel for the petitioner ordered on 12th of October, 1972, to implead the said Samiti as a party to this writ petition. A reply has been filed on behalf of the Samiti wherein it has been mentioned that the Samiti represents all the workmen including respondents Nos. 6 to 33 and, therefore, the reply represents the views of all the workmen.
2. The facts giving rise to this petition are briefly these. The petitioner company is running a mill at Jaipur manufacturing cotton and synthetic yarn and it has in its employment about 1250 workmen. There appears to be two unions, one led by the Marxist party and the other by Indian National Trade Union Congress (INTUC) The allegation of 'he petitioner company is that on 26th of April, 1972, when the night shift was working some of the workmen indulged in acts of hooliganism inside the mill premises and it was done at the instigation of the Communist Marxist party It is further alleged that the workmen under the influence of the aforesaid party leaders went on, illegal strike and they started giving beating to those workmen who did not join them in their strike. One Shri O.P. Choudhary, who was supervisor in the Reeling Department of the Mills, with seven other workmen were given beating with iron rods and laihis and they sustained injuries as a result of unlawful set done by the striking workmen. Thereafter, according to the narration given by the petitioner company of the activities of the workman working under the influence of the Marxist party, various acts of hooliganism took place in and outside the Mills premises. The petitioner company lodged reports of these unlawful acts of the workmen with the police Station, Bani Park, Jaipur, but their grievance is that the police did not take active interest to suppress these acts of hooliganism committed by the workmen It i, said that a call for a strike was given by the workmen, but there were certain other workmen who were prepared to attend to their duties but those, who were responsible for giving the call for strike, did not permit them to attend to their work. However, with the intervention of the Labour Minister of the Government of Rajasthan the strike was called off and the workmen joined their duty on 1st of June, 1972 but it appears that the grievances of the workmen were not redressed and, therefore, the industrial peace could not be restored with the result that even after the strike was called off various workmen indulged in violent activities and, according to the allegations made by the petitioner company, they tried to take revenge upon the honest and loyal workmen who remained faithful to the management and who did not obey the call of the strike. It is also alleged that the workmen who returned to their duties after the strike was called off adopted the go slow tactics and went on tool down strike intermittently on various occasions during the period commencing from 1st of June, 1972 to 25th August, 1972.
3. It appears that the management took a serious note of all these activities of the workmen and served some of the workmen with charge sheets, but this method adopted by the management widened the gulf between the workmen and the management. Complaints of stray actions of violence alleged to have been committed by the workmen were lodged with the police, but the petitioner company feels that the police authorities encouraged the Marxist union to infuse spirit of violence in the workmen and therefore they freely indulged in violent and unlawful activities. On 25th of August, 1972, it is alleged, two persons, namely, Sitaram and Ashok Sharma, who were members of the staff, were given beating with lathis within the mill premises. A complaint was lodged by Sitaram at the Police Station, Bam Park on the same day, but it is said that no action was taken by me police against the wrong doers. These activities on the part of the miscreants created an atmosphere of terror and the management started thinking that the lives of the loyal workers and that of the members of the supervising staff were not safe. The management also apprehended danger to the properties of the mills, and it is alleged that on 26th of August, 1972, Shri Parti and Sohanlal members of the staff were given beating within the mills premises and the complaint lodged by them with the police did not bring any result. According to the petitioner, the staff was so much terrorised that they even Hid not feel like lodging reports of the violent activities of the workmen. The management thereupon is said to have informed the District Magistrate and the police authorities that in such circumstances it was not possible for them to carry on the business of the company and they thought that they were left with no alternative but to declare a lockout the mills. On 26th of August, 1972, at 9.00 p.m. the lockout was, therefore, notified giving elaborate reasons for taking such a drastic action on the part of the management The grievance of the petitioner company is further that even after the declaration of the lock-out the workmen did not leave the mill premises and they are still coming to the mills and do not permit the management to lock the outer gates of the mills. The situation was intimated to the Government as well is to the police authorities by the petitioner company by sending the following telegram on 27th of August, 1972:
Management declared lock out yesterday workers of night shift forcibly entered Mills remained inside mill premises inspite of lock out (.) In morning and second shift also workers forcibly entered Mills workers trespass continued still (.) Request necessary action for vacation of trespass thereby ensuring safety of Mills property
Jaipur Spg Mill
When no action was taken by the police on the said telegram to remove the trespass a second telegram was given by the management on 31st of August, 1972, to respondents Nos. 1 to 5 which reads as follows:
Re-four telegram 27th August (.) Illegal trespass by workers on our Mill premises is still continuing ( ) Request immediate necessary action for vacation of illegal trespass by workers from our premises ensuring safety of Mill property
On 2nd September another telegram reading
Ref our telegram 27th and 31st August (.) Illegal trespass by workers on our Mill promises i still continuing (.) Request immediate necessary action for vacation of illegal 'trespass by workers from our premises ensuring safety of Mill property
was again rent. The petitioner's grievance is that inspite of all their endeavours, the police did not take any action against the trespassers and, therefore, they have decided to approach this Court by filing this writ petition under Article 226 of the Constitution making the prayer as referred to above.
4. A reply has been filed on behalf of respondents Nos. 1 to 5 wherein certain acts or violence committed by some of the workmen as complained of by the petitioner company in the beginning when the trouble started in the Mills have been admitted, but it is averred by the respondents that the police took appropriate action against the miscreants&after; registering the cases against those who were involved in violent activities challans were put up in the court of law. It is also averred that in curbing the activities of the violent workmen the police personnel also sustained various injuries and, therefore, it cannot be said that the police was a silent spectator and was not discharging its duties in accordance with the mandate of the law. However, while making a reply to paras 18 and 20 of the writ petition, the answering respondents took a plea that the lock-out declared by the petitioner company was not a legal lock out as there were no grounds available to the management to declare a lock out It is admitted in this para that the Mill was working at the time when the lock out was declared by the management and, therefore, the labourers of one shift who were already there in the mill remained there & thereafter it is averred that 'now also the labourers come peacefully, stay there and then labourers of other shift replace them. Neither the outer gate nor inner Department has been closed. Since 26.8 72 even upto date neither any loss has been caused to the Mill property nor any person has been beaten or threatened. The matter has been referred to the Industrial Tribunal for adjudicating the validity of notice dated 26.8.72'. In reply to contents of para 20 of the writ petition, the respondents Nos. 1 to5 have averred that 'according to the union's person the lock out is with an unique motive just to throw out the labourers The question of legality or validity of such lockout is sub-judice with the Tribunal. The labourers are on peaceful strike and are demanding their salaries and dues without resorting to any violence. The Chowkidars and telephone operators are inside the mill premises while the other staff of the Mill management is not attending the Mill as per their -sweet will and there is no danger to their lives or any apprehension of damage to the property. Since the labourers are the employees of the petitioner, they have their right to enter an remain in the mill premises and in the absence of proper lock out they cannot be designed as trespassers They are in no way intimidating or annoying the petitioner. Therefore, under such circumstances under on provision of law they can be physically lifted and thrown out of the Mill premises by the police. It is wrong for the petitioner to say that there is any terror created by the labourers. The petitioner has sent telegrams from time to time simply to create grounds to justify their paper lockout. The Government agencies have taken action whenever it was needed and would take action if so warrants.
5. In this view of the stand taken by the respondents, it is prayed that the petition of the petitioner company should be rejected with costs.
6. While making application to be impleaded as a party, the Suti Mill Mazdoor Ekta Samiti in para No. 6 thereof mentioned that 'all the workers under the leadership of the Ekta Samiti have refused to accept the lock out and are attending their duties regularly shift by shift'. At the time of arguments, a specific question was put to Mr. Sarimali about the position of workers whether they are still in the occupation of the mills or not. An affidavit has been filed by one Shri Ram Narain who happens to be the Secretary of the said Samiti and in this affidavit it has been averred that the workmen are going to the mills shift-wise to attend to their duty and one shift leaves the mill after the time for that shift is over and Anr. shift goes to the mills. It is, however, stated that these workmen go only up to the Department and they do not go to the machines, where they have actually to work In reply to this affidavit, Shri Banwarilal Tibrewal has filed a supplementary affidavit on 4th of November, 1972, contradicting the averments made in the affidavit of Shri Ram Narain and alleging that the Security Officer of the mills has lodged a report with the Police Station, Bani Park, on 27th October, 1972, that several almirahs in the mills were unlocked and were lying open and in some of the almirahs even the latches and the locks are missing. The petitioner company has filed the copy of this first information report along with this affidavit.
7. The Samiti has taken a stand in its reply that the lockout declared by the management was uncalled for and it was, therefore, an illegal lockout. This lock-out, according to the Samiti, does not terminate the relationship of the workmen and the management as that of master and servant and, therefore, as lawfully employed servants the workmen have to go to the mills and bring collective pressure on the management to concede the demands made by the union. The action of the workmen going in the mills after the lock-out has been declared by the management, according to the Samiti, is not an unlawful act of the workmen and, therefore, it cannot be said that they have committed any criminal trespass against the petitioner company.
8. Mr. Agarwal, appearing on behalf of the petitioner, has narrowed down the issues by arguing only one point that the act of the workmen of going to the mills and occupying the mill premises after the declaration of lock-out falls within the expression 'trespass' as defined in the Penal Code and as such a duty lies on the police authorities to remove this trespass when an approach was made to them by the petitioner company and since the police authorities have taken a very strange attitude towards the unlawful activities of the workmen, the petitioner company is left with no remedy but to invoke the extraordinary jurisdiction of this Court to get the wrong done to it redressed by seeking a writ of mandamus to the respondents to discharge their duty under the Rajasthan Police Act and the Code of the Criminal Procedure. According to Mr. Agarwal, it is due to the timid attitude of the management that inspite of the criminal trespass there appears to be a peaceful atmosphere in the mills because the management out of fear of violence did not interfere with the unlawful activities of the workers and completely withdrew itself from the mills as it apprehended danger to the safety of the properties of the mills. He, therefore, urged that forbearance on the part of the management should not be interpreted to mean that peaceful atmosphere in the mills can in any manner justify the passive attitude adopted by the police. The substance of Mr. Agarwal's contention is that the apparent peaceful atmosphere reigning in the premises of the mills due to the complete withdrawal of the management cannot be taken as a pretext by the police authorities to bid good bye to their pious duties under the law to remove the trespass which has virtually deprived the petitioner company of its legitimate right to manage the mills.
9. Mr. Purohit, appearing on behalf of the respondents Nos. 1 to 5, on the other hand, contends that the management cannot be permitted to shield its unlawful activities of declaring a lock out when circumstances did not warrant such an action on the part of the management; and, therefore, by levelling serious charges against the police authorities who have always been taking active interest to suppress the hooliganism of the workmen and to take proper action against them under the law, it cannot justify its attitude to wards its own workmen which to a great extent is responsible to create the disturbed atmosphere in the industry. He also referred in his arguments to an incident when many members of the police force sustained injuries at the hands of the mill mazdoors when they attempted to restrain the mazdoors to go to the Chief Minister to register their grievances with him His argument, therefore, is that, on the one hand, the police is being manhandled by the mazdoors and on the other hand, a false charge is levelled against the police that it is not discharging its duties for keeping law and order, especially when the activities of the labourers in pressing their demands are quite peaceful. It was also contended by Mr. Purohit that this Court in the exercise of its extraordinary jurisdiction cannot direct the police people as to how much force should be used by the police to curb the unlawful activities of the Mill Mazdoors, especially when the police has taken the action every time when a complaint was lodged with it of any violent action committed by any of the members of the Mill Mazdoor union.
10. Mr. Shrimali, appearing on behalf of the Samiti, contended that it is the right of the workmen to press their demands and have a collective bargaining with the management and it was with that view that the members of the Samiti are making a peaceful demonstration within the mill precincts even after the lockout has been declared and in order to do that the labourers are going shiftwise to the mills and are staying in the mill precincts for the work to be given to them during the period of lockout. He also argued that the lockout by itself does not terminate the relationship of master and servant between the employer and the employed and, therefore, as servants the workmen have a right go to a place of work and, therefore, their entry in the mill precincts during the lock-out cannot fall within the mischief of the definition of 'trespass' as given in Section 441 of the Indian Penal Code.
11. These rival arguments of the parties give rise to a very important question to be determined by this Court whether the back out declared by the management in any way can put a curb on the alleged right of the workman to discharge their duties as employees of the petitioner company even though no work is provided to them by their masters during the period of lock out and whether the entry of the workmen in the premises of the mills falls within the term 'criminal trespass'.
12. In order to resolve this controversy, we shall have to see as to what is the effect of lock-out. But before coming to that question, I would like to mention that this question need not be gone into by this Court whether the lock-out was a proper lock out or was an illegal lock-out. The union, it appears, has already raised an issue before the Government that the lock-out declared by the management was an improper and unlawful lock-out and that dispute appears to have been referred by the Government to the Industrial Tribunal for adjudication. It will therefore, be not proper for this Court to examine that question at this stage which is also not relevant for the purpose of deciding the issue that has been raised before this Court. Whether the lockout is lawful or unlawful matters little for the purpose of deciding the question that has been so vehemently urged by the parties whether the act of the workmen to enter the mill premises when the lock-out was declared by the petitioner company falls within the mischief of the term 'criminal trespass' or not. If the lock-out is ultimately declared unlawful, then whatever the remedies are available to the workmen to get their grievance redressed for declaring an unlawful lock-out will be available to them under the provisions of the Industrial Disputes Act and the Tribunal before which this dispute is pending shall be at liberty to give proper relief to the workmen if ultimately it was found that the lockout was uncalled for and was, therefore, unlawful.
13. In order to decide the question before this Court, it shall have to be taken that the lock-out was declared by the petitioner company on 26th of August, 1972 and what is the effect of such a declaration of lock-out on the rights of the employees.
Lock-out' has been defined in the Industrial Disputes Act in Section 2(1) as follows:
'Section 2(1) Lock-out' means 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;
14. According to this definition, lock-out can be declared in three ways viz. (1) by closing the place of employment, (2) by suspending the work, or (3) by refusing to continue to employ any number of persons employed by an employer.
15. In the present case, the notice issued by the employer shows that there was an apprehension in the mind of the employer that under the circumstances then prevailing it was not safe to continue the working of the mill and, therefore, the employer suspended the work of the mill, A lock-out need not always be connected with economic demands. It can be resorted to as a security measure and is generally adopted as such in certain cases The Supreme Court has laid down that strike is a weapon available to the workmen' whereas lock-out is a weapon employed by the employers In the present case, the management appears to have been compelled to adopt this measure of declaring lock-out because it had an apprehension that with the conditions then prevailing, it would not be safe to run the mills. From the definition of lockout' it would appear that it is a temporary measure adopted by the employer and the suspension of work, therefore, does not automatically terminate the conditions of service of the employees Even during the time of lock-out the employee remains in the employment of the employer but he is not provided with a work by the employer as the work is suspended for the time being. One of the modes of declaring a lock-out is the refusal by an employer to continue to employ any number of persons employed by him, but it does not mean that the employment of an employee is terminated during the period when the employer refused to employ him for the period of lock-out. This question as to how the phrase ''refusal by an employer to continue to employ' be construed came up before the Labour Appellate Tribunal of India in Presidency Jute Mills Co. Ltd. and Presidency Jute Mills Co Employees Union 1952 (I) LLJ 796. The learned Members of the Tribunal, while comparing the definition of lockout' with that of 'strike' as given in the Industrial Disputes Act, observed:
The meaning of the phrase must, therefore, be refusal by the employer to allow a number of his workmen to attend to their duties without terminating their services. Thus, in a lock-out, the relationship of employer and employee remains as before, only some links in that chain of relationship are broken.
16. I agree with the expression given by the learned Members of the Appellate Tribunal while examining the position of the employees vis a vis the employers during the period of lock-out. No sooner the lockout is lifted, the employee can claim that he must be allowed to walk and this is possible only when he remains in the employment of the employer during the period of lock-out. The relationship of master & servant creates certain rights in favour of the employees as well as in favour of the employer. The employer has a right to demand work and has a corresponding duty to make payment to him for the work rendered by him. Similarly, the employee has a right to demand wages for the work done by him for his employer and he is under an employee as demanded by his employer under the contract of employment. During the period of lock-out, the employer refused to take work temporarily from his employees and, therefore, his corresponding liability to discharge his duties under the contract gets suspended and it is in this light that the links in that chain of relationship of employer and an employee are broken. In this state of law, during lock-out an employee cannot make a demand that he would continue to work for his employer though the employer has suspended the work for the time being, and it is in this light that I have to examine the question whether the act of the workmen falls within the definition of criminal trespass' or not.
17. Mr. Agarwal in support of his contention that the entry made by the workmen in the premises of the mills after the lockout was declared is nothing short of criminal trespass, relies on the following three authorities:
Mysore Machinery . Bangalore v. State of Mysore and Anr. AIR 1969 Mys 51; Chelpark Company Ltd. v. The Commissioner of Police, Madras and Ors. : (1967)IILLJ836Mad ; Sadul Textile Mills Ltd. v. Workmen of Sadul Textile Mills and Anr. .
18. Mr. Shrimali, on the otherhand, relying on the Supreme Court judgment in Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation and Anr. (1939) 306 US 240, urged that a workman if he enters the premises of the mill in order to pressurise his master to accede the demands raised by the workmen, cannot be said to have committed a criminal act. According to him, if it is at ail a trespass, then it is of a Civil nature, and therefore the management can exercise its right to file a suit to remove the civil trespass and cannot take recourse to the extraordinary jurisdiction of this Court under a plea that the workmen have committed a criminal act and, therefore, mandamus be issued to the police authorities to remove that criminal act.
19. The Supreme Court authority relied upon by Mr. Shrimali was cited before the Mysore and Madras High Courts and it has been distinguished by these two courts and held that the circumstances of that case were entirely different and, therefore, the observations made by their Lordships of the Supreme Court cannot govern the circumstances obtainable in those two cases.
20. In Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation and Anr. : (1959)IILLJ666SC , the employees of the Punjab National Bank Ltd. went on a pen down strike. When they were asked by the management to leave their places in the Bank precincts they refused A plea was raised before the Supreme Court that the conduct of the strikers constituted a 'criminal trespass' under Section 441 of the India Penal Code, and it was argued that the licence given to the employees to enter the Bank premises was a conditioned one and they could enter the Bank building only when they had to discharge their duties as employees, it was also argued that if they had entered the Bank premises under the licence given by the employers, they had no right to stay in their seats when their officers demanded them to quit their seats after they had declared their pen-down strike and refused to work for the Bank. Their Lordships of the Supreme Court dealt with this question in para 47 at page 176 and observed as follows:
According to the Bank the employees committed criminal trespass inasmuch as they either entered unlawfully or having lawfully entered continue to remain there unlawfully with intent 'thereby to insult or annoy their superior officers. It would be noticed that there are two essential ingredients which must be established before criminal trespass can be proved against the employees. Even if we assume that the employees' entry in the premises was unlawful or that their continuance in the premises became unlawful it is difficult to appreciate the argument that the said entry was made with intent to insult or annoy the superior officers. The sole intention of the strikers obviously was to put pressure on the Bark to concede their demands. Even if the strikers might have known that the strike may annoy or insult the Bank's officers it is difficult to hold that such knowledge would necessarily lead to the inference of the requisite intention. In every case where the impugned entry causes annoyance or insult it cannot be said to be actuated by the intention to cause the said result. The distinction between knowledge and intention is quite clear, and that distinction must he borne in mind in deciding whether or not in the present case the strikers were actuated by the requisite intention. The said intention has always to be gathered from the circumstances of the case and it may be that the necessary or inevitable consequence of the impugned act may be one relevant circumstance. But it is impossible to accede to the argument that the likely consequence of the act and its possible knowledge must necessarily import a corresponding intention.
21. While rejecting the plea of the Bank, their Lordships of the Supreme Court drew a fine distinction between the intention of the party who enters the premises and the knowledge that their entry might cause annoyance or insult to the officers of the Bank However, in the circumstances of that case, the learned Judges were not prepared to accept the argument of the Bank that the strikers entered the premises with an intention to annoy or insult the officers of the Bank. In that case, the employees entered the Bank premises and after reaching the place of their working they resorted to pen-down strike. Therefore, it cannot be said that at the time when they entered the Bank premises they had no licence to enter those premises. They had undoubtedly a licence from their master to reach their seat & if after reaching their seat in the bank premises they resorted to the pen down strike, then it cannot be said that they entered the premises unlawfully. The next argument of the Bank was that having entered lawfully, if they remained unlawfully in the seats, they had committed the act of criminal trespass, but this plea was not accepted by their Lordships on the ground that the employees had a right to press their demand collectively and it was in the exercise of that right that they remained in their seats in spite of the fact that they had refused to work for their master. Their Lordships in those circumstances held that it was difficult for the Court to impute intention to the employees to annoy or insult their master because in the opinion of their Lordships they had adopted that course to pressurise their master to concede their d mind and it is at this stage that the learned Judges drew that fine distinction between the knowledge and intention of the workers and they observed that in may be possible that the employees may have the knowledge that their action might annoy or insult the officers of the Bank but it cannot be said that the circumstances could reasonably impute intention to the employees to annoy or insult their masters though they remained in their seats to bring collective pressure on the management of 'he Bank to concede their demands and in such circumstances the Supreme Court found that the action of the employees could not be covered by the expression 'criminal trespass' though in their opinion it may be a civil trespass.
22. In Mysore Machinery . Bangalore v. State of Mysore and Anr. AIR 1969 Mys 51, this question arose in a writ petition filed by the employers in slightly different circumstances, but the judgment if carefully perused clearly lays down this principle that if the employees had no right to enter or stay in the premises, their entry in the mills and then remaining within its premises comes within the definition of 'criminal trespass', and the learned Judges are definitely of opinion that if a complaint is filed by the management to the police authorities disclosing reasonable grounds for believing that offence under Section 447 Indian Penal Code was being committed, the police authorities were bound to take action under Section 55 or 166 of the Criminal Procedure Code and under Section 55 of the Mysore Police Act. In that case, the Supreme Court judgment in Punjab National Bank Employees' Federation and Anr. (5) was cited by the workmen to support their cause, but their Lordships distinguished that judgment of the Supreme Court on facts, and after considering certain observations of the Supreme Court, they observed as follows:
It can be easily concluded from these observations of their Lordships that where the relationship of master and servant has ceased, any assertive action attended with threats of injury and violence on the part of the labour with a view to prevent the willing workers from entering in to the factory premises and the supervisory staff of the management from looking after their property and further, their unauthorised occupation of the promises to the exclusion of the management cannot but be regarded as disclosing an intention to commit offences.
23. It was urged by Mr. Shrimali that these observations of the learned Judges of the Mysore High Court cannot' be attracted to the circumstances of the present case as in that case the workmen were dismissed by the employer and, therefore, these observations can hold good for the dismissed workmen who had no right to make any entry in the premises, but his contention is that in the present case the relationship of master and servant between the management and the workmen still exists and, therefore, it cannot be said with any justification that the workmen cannot enter the premises to press their demands.
24. I have already discussed the position of a workmen during the period of a lock-out & have held that certain links in the chain of employment evaporate as soon as the lock-out is declared by the employer- During the period of lock-out it is not open for an employee to say that he has a right to discharge his duties and shall work and on that account can claim the entry in the premises. I regret, cannot accept this argument of Mr. Shrimali because the temporary suspension of work brings within its wake' the termination of that link between the matter and servant to discharge his duties under the contract of service and, therefore, the employee cannot claim as of right that he would go to the place of working and would wait to discharge his duties even though the working of the mill is temporarily suspended., In my opinion, the licence for an employee to enter in to the mill temporarily vanishes as soon as the lock-put is declared by the employer and the working of the mill is suspended. the workman cannot, during the course of lock-out, claim to enter the premises of the mills to discharge his duties under the contract of service.
25. In Chelpark Company Ltd. v. The Commissioner of Police, Madras and Ors. : (1967)IILLJ836Mad it has been held by that court that by virtue of relationship as employer and employees, the employees have got a right to enter the factory premises at the commencement of working hours and stay and work during these hours and then leave at the closing of working hours. According to this judgment, the workmen cannot claim any right to enter the premises before the working hour starts and to remain therein after the working hours are over. It was further held that as the employees are entitled to work during working hours, they can refuse to work only during working, hours, while they stay and strike, but after the closing hours, the employer has a right to close the factory and make arrangements for the protection of the property. The act of the striking workmen in remaining in the factory after the working hours therefore amounts to seizure and holding of the building, and thereby preventing the use of the premises by the employer in a lawful manner and, therefore, presence of the workmen in the factory premises after the working hours is unlawful and amounts to trespass.
26. This principle as laid down by the Madras High Court when applied to the circumstances of the instant case it can safely be said that the workmen are guilty of criminal trespass by going to the mills shiftwise and occupying the premises when the working of mills is suspended by the management by declaring the lock-out. After the declaration of the lock-out which results in the closing of the mills, the workmen cannot say that they can enter the mills in the expectation of getting the work. A workman cannot expect any work during the period of lock-out and, therefore, the entry of the workmen in the mills which precludes the management from discharging its duties of protecting the properties, will be an act of trespass and the occupation of the mill premises including the machinery shall be a seizure of the property by the workmen. In the present case, it is admitted by learned Counsel appearing on behalf of the Samiti as well as by the respondents Nos. 1 to 5 that the workmen go and occupy the premises of the mills shift by shift and, therefore, their action can safely be said that they have seized the property of the mills to the exclusion and the control of the mill management.
27. The learned Judge of the Madras High court while discussing the situation that had arisen in that case observed 'that the ultimate object of the striking workmen is to mike the petitioner yield to their wishes. But the means adopted to achieve their object must also be lawful.' This observation makes it abundantly clear that the workmen can bring pressure on their employers to concede their demands only to this extent to which their pressure is lawful. They cannot report to the methods which go to violate the law of the land In the present circumstances, the entry of the workmen in the premises of the mills when the lock-out has been unequivocally declared by the management, cannot be made in the exercise of the rights of the workmen. The action of a workmen in the circumstances when he is not required to work and when he cannot, as of right, claim to discharge his duties under the contract of service as long as the lock out is not lifted, will definitely fall within the ambit of the expression 'trespass'. I find it difficult to accept the contention of Mr. Shrimali that this type of method adopted for collective bargaining is permissible under the law because collective bargaining never envisages that the action taken by the workmen should in any manner go to violate the provisions of the land. When the mill has been closed and a notice to that effect has been published by the management, the workman cannot have a forcible entry into the mills and use such an entry for bring pressure on the employer to concede their demands. Collective bargaining, if it is to be done by the union or the workers, must be done strictly in accordance with the provisions of the law and the workmen should not adopt any such methods which may go to annoy, insult or intimidate the employer. In the present case it is abundantly clear that the method adopted by the workmen to occupy the premises of the mills is of such a nature that their intention 10 annoy or insult or intimidate can easily be inferred from it. In such circumstances, it is a clear case of criminal trespass. I have, therefore, no doubt in my mind that the workman entering the premises of the mills in three shifts every day when the mills have been closed by the declaration of lockout have no other intention except that they cause annoyance or throw insult to the employers who have declared a lock-out against their wishes. Their action, therefore, brings them under the mischief of Section 441 of the Indian Penal Code.
28. In Sadul Textile Mills Ltd. v. Workmen of Sadul Textile Mills and Anr. , the learned Judges of this Court considered the question whether even without violence a stay-in or sit-down strike in the premises of mills was an invasion of the rights of the employer in the property. Their Lordships held that the action of the workmen in such circumstances definitely fell within the mischief of trespass In that connection, the following observations of the learned Judges of the Supreme Court of America in National Labour Relations Board v. Fansteel Metallurgical Corporation (1939) 306 US 240 were relied:
For the unfair labour practices of respondent the Act provided a remedy.... But reprehensible as was that conduct of the respondent, there is no ground for saying that it made respondent an outlaw or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike but they had no licence to commit acts of violence or to seize their employer's plant.... The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labour dispute or of an unfair labour practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society.
29. These observations are relevant for the purpose of the instant case. Even if the employer had resorted to certain unfair means in declaring the lock-out, that action of the employer by itself does not afford any ground for the workmen to adopt an unlawful method to press their demands on their employers. As their Lordships of the American Supreme Court have said that to justify such conduct because of the existence of a labour dispute or of an unfair labour practice would be to put premium on resort to force instead of legal remedies. In a democratic society where rule of law is the very foundation of the order of the society, it cannot be permitted by the courts that the labour should resort to such practises which may go to violate the provisions of law. The Court cannot permit in the name of collective bargaining to do an act which is unlawful.
30. In Samuel Compers, John Mitchell, and Frank Morrison v. Buck's Stove & Range Company (1911) 221 US 418. Mr. Justice Lamar of the Supreme Court of America observed as follows:
Society itself is an organisation, and does not object to organization for social, religious, business, and all legal purposes. The law, therefore, recognizes the right of workmen to unite and to invite others to join their ranks, thereby making available the strength, influence, and power that come from such association. By virtue of this right, powerful labour unions have been organized.
But the very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the Constitution; or by standing on such rights, and appealing to the preventive powers of a court of equity When such appeal is made, it is the duty of Government to protect the one against the many, as well as the many against the one.
31. It is a very pregnant observation made by the learned Judge of the Supreme Court of America and it indicates that the power in unity of the trade unions should not be allowed to prevail over the rights of an individual and if one feels helpless against such a powerful union or body and if he wants to buy peace by sacrificing his rights, then the Government should not remain a silent spectator and when an appeal is made to the preventive power of the court of enquiry, it must come forward to protect an individual against the powerful body constituted by uniting multitude of members under the trade union activities The trade unions have right to press their demand collectively and that tight should not in any manner be curbed, but it does not mean that. the object must be achieved by resorting to unlawful means. The trade unions must always use the methods to achieve their ends by resorting to such measures which are permissible in law and which do not go to violate the letter and spirit of the law.
32. Learned Deputy Government Advocate has raised a very novel point by stating that this Court has no jurisdiction to issue direction to the police authorities as to in what measure the force must be used by the police to remove an unlawful action. According to him, the police has been quite vigilant in giving relief to (he mill owners whenever they found that the law has been violated by the labour. I need not go into this question whether the police has acted with diligence or not, but in the present circumstances, from the perusal of the reply filed by the respondents Nos. 1 to 5, it is clear that the respondents Nos. 1 to 5 think that the lock-out is illegal or, as they call it is a paper lock-out and as such the rights of the employees to enter into the premises still exist and their entry cannot be termed as an unlawful act on the part of the labour. It may be mentioned that it is not within the competence of the police authorities to judge whether the act of declaring lock-out is legal or not, especially when the matter has been referred to the Tribunal by the State Government under the provisions of the Industrial Disputes Act. Even if the authorities thought that the circumstances did not warrant the declaration of a lockout, it was not open for them to sit on judgment about the legality of the lock-out and if the employers had rightly or wrongly declared a state of lock-out, then the only effect of such a declaration was to suspend the right of the workmen to claim that they would report themselves on duty and work even though the work has been suspended under the lock-out. In such circumstances, as discussed above, the only course left open to the police authorities was to protect the properties of the petitioner company from the unwarranted invasion of the premises of the mills by the workmen.
33. It is contended that the properties have not been destroyed by the workmen even though they have been regularly going and sitting in the premises of the mills and, therefore, there was no apprehension of the destruction of the properties and as such no duty lay on the police to use its force and remove the workmen for the premises of the mills The stray instances of violence alleged to have been committed by the workmen before the lock-out was declared by the management created an atmosphere of terror in the minds of the officers of the mills and perhaps it was in these circumstances that they did not like to assert their right against the wrongful entry of the workers in the premises of the mills. This inertia on the part of the management cannot provide a ground for the police authorities to shut their eyes towards the commission of a crime and to sit idle till a violent attitude is adopted by the labour. If the management had asserted its right to drive the labour out of the mills, then there was every likelihood that the situation of law and order would have deteriorated. Without the aid of the police force, the management perhaps did not think it advisable to create scenes on the spot and to put their properties in a state of jeopardy but this inaction on the part of the management cannot be resorted to as a ground to justify the inaction on the part of the police. When telegrams were sent on 27th and 31st of August, 1972, to the authorities concerned, it was their duty under the law to take such measures which might prevent the commission of crimes It is not for this Court to suggest to the police or other authorities who have been impleaded as parties to this writ petition as to what type of measures and to what extent force should have bean used by them. It was for them to decide as to how the situation should be handled by them under the existing circumstances obtainable at the spot, but I would like to say that when the crime is committed, it is the pious duty of the police authorities to extend their hand of cooperation to remove that crime and to see that the properties and personal liberties of the citizens are not put in hazard because under the mistaken' notion of their rights the labour think that in order to have a collective bargaining they can go and seize the property of the petitioner company. In these circumstances, I am of opinion that it is a fit case when this Court should issue direction to the police authorities to remove the criminal trespass committed by the labour in the premises of the mills.
34. The writ petition is accordingly allowed and direction is issued to the respondents Nos. 1 to 5 to remove the criminal trespass. No order as to costs.