The Secretary Vibromech Engineering Thozilalar Sangam Madras v. The Management of Vibromech Engineering Private Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 06.01.2009CORAMTHE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWRIT APPEAL No.1039 of 1998and C.M.P.No.12126 of 1998The SecretaryVibromech Engineering Thozilalar SangamMadras. ..Appellant /Petitioner -vs-1. The Management of Vibromech Engineering Private Limited, Perungudi, Madras.2. The Presiding Officer Industrial Tribunal, Madras. ...Respondents/RespondentsWrit appeal filed under Clause 15 of the Letters Patent againstthe order, dated 31.03.1997 made in W.P.No.8487 of 1988. WritPetition filed under Art.226 of the Constitution of India, to issue aWrit of Certiorarified Mandamus, calling for the concerned recordsfrom the second respondent made in I.P.No.52 of 1986 dated 9.3.1988,quash the same and for the order the reinstatement of the 18petitioners in service with backwages continuity of service andother attendant benefits, and award costs of this writ Petition.For appellant : Mr.S.GunaseelanFor respondents: Mr.T.R.Rajaraman for R1 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TS.TAMILVANAN,JThe writ appeal has been preferred, under clause 15 of theLetters Patent, against the order, dated 31.03.1997 made inW.P.No.8487 of 1988 by the learned single Judge, confirming theorder, dated 09.05.1988 passed by the second respondent in I.D.No.52of 1986.2. The appellant herein had filed the writ petition inW.P.No.8487 of 1988, challenging the order passed by the IndustrialTribunal at Chennai, seeking an order in the nature of writ ofcertiorarified mandamus, calling for the records relating to theorder, dated 09.05.1988 made by the Tribunal in I.D.No.52 of 1986 andquash the same and also to direct the first respondent / managementto reinstate 18 employees of the petitioner union with back wages,continuity of service and other attendant benefits.3. It is not in dispute that the management of the VibromechEngineering Private Limited, the first respondent herein, had raisedan Industrial Dispute in Ref No.52 of 1986 against 18 namedemployees, under Section 33 (1) (b) of Industrial Disputes Act, 1949before the Industrial Tribunal, Chennai. In the petition filed, itwas stated by the first respondent before the Tribunal that theestablishment had suspended its manufacturing activities from21.06.1985 to 15.09.1985 in view of the riotous behaviour,indiscipline and acts of violence created by the respondents thereinalong with other workers. It is further stated that on 24.06.1985,charges were framed against the workmen and written explanation wasalso called for from them, then a domestic enquiry was conducted.According to the first respondent herein, the workmen deliberatelyrefrained from attending the enquiry on flimsy pretext and hence, theenquiry officer was constrained to conduct the enquiries exparte. Theenquiry officer held that the charges levelled against all theworkmen were established and in the said circumstances of the case,it was suggested that punishment of dismissal would be theappropriate action against them. Accordingly, second show causenotice was issued regarding the proposed punishment. The explanationssubmitted by the workmen were found not satisfactory, taking intoconsideration the gravity of the misconduct and it was decided thatthe workmen were to be dismissed from service with effect from02.09.1985. They were also placed under suspension pending enquiryunder clause (b) of Sub-section (1) of Section 33 of the IndustrialDisputes Act.4. In the counter filed on behalf of the workmen, respondents https://hcservices.ecourts.gov.in/hcservices/ therein, all the allegations raised by the first respondent hereinwere denied. According to the workmen, suddenly the managementimposed illegal lock-out from 21.06.1985 in contravention of theprovisions of the Industrial Disputes Act and on the same day, 12workers were arrested on certain false and foisted cases and themanagement served charge memos, making false allegations against theworkmen. They have also stated that the union had filed severalcomplaints before the police and when the management suspended theworkmen on 02.09.1985, they requested management for change ofenquiry officer and also the place of enquiry on various grounds,including safety of the workmen, but the management failed toconsider the same, but issued second show cause notice proposing thepunishment of dismissal.5. On the side of the first respondent / management , PersonnelOfficer of the first respondent herein was examined as M.W.1. On theside of the opposite party / workmen, W.W.1 was examined, apart frommarking various documents. However, the Tribunal allowed the petitionfiled by the management, seeking punishment of dismissal, againstwhich, the writ petition was filed. The learned single Judge, bysetting aside the impugned order, remitted back the matter to thesecond respondent for fresh disposal, according to law, aggrieved bywhich, this writ appeal has been preferred.6. It is brought to the notice of the court that in a similarwrit petition filed in W.P.No.16499 of 1998 by workmen, representedby its Secretary, Vibromech Engineers Thozhilalar Sangam, therespondent herein, considering all the facts and circumstances of thesaid case, the learned single Judge, by order, dated 03.11.2008 hasheld as follows :"Therefore, the workmen, who are denied work fromthe day they had expressed their willingness toreport for work till the lockout was lifted areentitled for 50% of the wages. The Award impugnedin the writ petition will stand modified to thatextent."7. It is seen from the order that when lockout was lifted on16.09.1995, out of 120 workmen, 58 workmen reported for duty and 25were kept under suspension pending enquiry, out of which fiveworkmen's suspension was revoked and two had resigned. The balance 18workmen were dismissed, after holding enquiries with the approval ofthe Tribunal. It is seen from the records that the dispute arose onlyafter the charter of demands was placed by the union and even whenthe issue was pending before the Conciliation authorities, themanagement had declared lockout on 29.06.1985. However, the appellantunion herein, the petitioner in the aforesaid writ petition, gave itin writing to the management, expressing their willingness for thework and further, as per the letter, Ex.W.25, dated 17.09.1985, the https://hcservices.ecourts.gov.in/hcservices/ workmen were ready to join work. Under Ex.W.11, the union hasaddressed the management regarding illegal lock-out. However, themanagement, first respondent herein, had imposed pre-conditionsstating that the workmen should give individual undertakings, thoughthe workmen were willing to report for work, without any pre-condition. When the workmen were ready and willing to join work, asper letter, Ex.W.25, dated 17.09.1985, the management, withoutconsidering the same issued Ex.W.26 notice on the same day. As perEx.W.28, letter dated 20.09.1985, Union's President asked themanagement for lifting the lock-out. As per Ex.W.38, letter, dated22.11.1985, the union expressed the willingness of the workmen tojoin work. 8. The Hon'ble Supreme Court in Statesman Limited vs. TheirWorkmen reported in AIR 1976 SC 758, while dealing with a similarissue, has held in paragraph 17 and 22 of the Judgment, which isextracted as below :"17. If the strike is illegal, wages during theperiod will ordinarily be negatived unlessconsiderate circumstances constrain a differentcourse. Likewise, if the lock-out is illegal fullwages for the closure period shall have to be"forked out", if one may use that expression. Butin between lies a grey area of twilit law.Strictly speaking, the whole field is left to thejudicious discretion of the tribunal. Where thestrike is illegal and the sequel of a lock-outlegal, we have to view the whole course ofdevelopments and not stop with examining theinitial legitimacy. If one side or other behavesunreasonably or the overall interests of goodindustrial relations warrant the tribunal makingsuch directions regarding strike period wages aswill meet with justice, fairplay and pragmaticwisdom, there is no error in doing so. His poweris flexible.22. Having regard to the circumstances of thecase, it is proper to direct that the appeal bedismissed but the parties will bear theirrespective costs. Before parting with this casewe deem it our duty to record our appreciation ofthe thoroughness of preparation of Shri KapilSibbal, a young advocate of promise, who hasassisted the Court as amicus curiae withprecedential industry and persuasive felicity."9. In the instant case, as per letter, it was intimated to thefirst respondent that the workers were subjected to physical attack https://hcservices.ecourts.gov.in/hcservices/ by anti social elements, by mentioning few names of such persons andit was also intimated that there is no safety to the lives of theworkmen, if the enquiry is conducted on 21.12.2005 at the specifiedplace and also requested to change the place of enquiry, in order toprovide safety to the workers.10. The Personnel Officer of the first respondent, who wasexamined as M.W.1 himself has admitted the fact that there was lock-out since 21.06.1985 and according to him, the workmen, who hadindulged in violence were suspended only from 02.09.1985. However,the witness deposed that he did not know the reason for the delay forsuspending the workmen. Had it been true, there could be no delay intaking action against the workmen, who had indulged in violence. 11. The learned single Judge in a similar matter referred toabove, has held, based on materials, that the award of the Tribunal,holding that the lock-out for the entire period could not bejustified, thereby denying wages for the whole period, asunreasonable. 12. According to the appellant, the first respondent, managementwas in the habit of engaging rowdy elements and anti social elementsfor physically attacking the women workmen, when they legally agitatefor their legitimate demands. On a thorough perusal of the entirematerials placed on record, we found that the said allegation of theworkmen cannot be ruled out, since there is abundant material onrecord to support the same. 13. It is not in dispute that the lock-out had taken place on21.06.1985, whereas the suspension of workmen, on the allegation ofindulging in violence, took place only on 02.09.1985, long after thelock-out. Had the version of the first respondent been true, ascontended by the appellant union, such workmen could have beensuspended on the alleged date or immediately thereafter. But, theywere suspended only on 02.09.1985, which has to be construed as anafter- thought and hence, legally not sustainable. As per the noticesent by the first respondent, Lattice Bridge, Adyar was the placefixed for enquiry, which is one kilometer away from the factory. Theaverments of the workmen, as per their letter are that the managementhad engaged rowdies and anti social elements to attack the workmen onaccount of their trade union activities and hence, they could notattend the enquiry. In our view the averments of the workmen cannotbe ruled out, having regard to the materials available on record.14. It is seen that the Industrial Tribunal has not consideredvarious aspects and the circumstances, which are against the firstrespondent, management and the evidence available on the side of theappellant shows that the workmen were deliberately prevented fromattending the enquiry and subsequently, they were dismissed fromservice. https://hcservices.ecourts.gov.in/hcservices/

15. Considering all the materials and the case of both theparties, we concur with the view of the learned single Judge in theorder, dated 03.11.2008 made in W.P.No.16499 of 1998, that there wasillegal lock-out by the first respondent and the order dismissing theworkmen is not legally sustainable. In such circumstance, we holdthat the 18 workmen referred to in this writ appeal are also entitledto the relief granted to other workmen, as per the order, dated03.11.2008 passed in W.P.No.16499 of 1998 by the learned singleJudge. We are of the considered view that there is no specificallegation and materials available as against the 18 workmen referredto in the writ appeal. As held in the other case referred to, theworkmen, who are denied work from the day they had expressed theirwillingness to report for work till the lock-out was lifted, they areentitled to 50% wages.16. In the instant case, it is seen that by the impugned order,dated 31.03.1997, the learned single Judge, set aside the orderpassed by the second respondent and directed to take up the matter tohis file and dispose the same. Since the material on record wouldspeak volumes in favour of the workmen and since the matter ispending for about 25 years and sending the matter back to theTribunal does not meet the ends of justice and further since thematerial placed on record would show that the 18 workmen referred toin the Writ Appeal are also entitled to similar relief as that ofother workmen, we do not propose to remit the matter. 17. Accordingly, the relief granted in the order, dated03.11.2008, passed in W.P.No.16499 of 1998 is just and reasonable andalso applicable to the facts and circumstances of this case, we findit reasonable to direct the first respondent to extend the similarrelief to the 18 other workmen who are also parties to the writappeal. It is made clear that the workmen, who are denied work fromthe day they had expressed their willingness to report for work tillthe lockout was lifted are entitled for 50% of back wages.18. With the above observation, this writ appeal is disposed of.No costs. Consequently, connected C.M.P.No.12126 of 1998 is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrartsvn https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding OfficerIndustrial Tribunal,Madras. 1 CC To Mr.S.Gunaseelan, Advocate, SR NO.5271 CC To Mr.M.A.Abdul wahab, Advocate, SR NO.772 W.A.No.1039 of 1998rsm(co)pmk/28.1.2009.