1. Heard learned advocates for the parties.
2. The petitioner – Second Party workmen in Reference (IT) No. 400 of 1990 from the Court of Industrial Tribunal, Gujarat Ahmedabad, have approached this Court invoking provisions of Articles 226 and 227 of the Constitution of India challenging the award and order dated 8.1.1998 passed by the Industrial Tribunal rejecting the Reference for the reasons stated thereunder.
3. Facts in brief deserve to be set out as under:
The petitioners were constrained to raise Industrial Disputes as lockout declared by the respondent from 16.1.1990 was illegal and for seeking reinstatement of 20 workmen on the original post with full back wages. The reason for imposing lockout was allegation of deliberate 'go slow policy' adopted by the workmen with ulterior motive. The said dispute was referred to the competent court i.e. Industrial Tribunal, wherein, it was marked as Reference (IT) No. 400 of 1990. The Tribunal after elaborate discussion of the evidences adduced on record, came to the conclusion that Reference did not merit acceptance and hence rejected the same vide award and order dated 8.1.1998, which is impugned in this petition invoking Articles 226 and 227 of the Constitution of India.
4. Learned advocate appearing for workmen contended that the Management's insistence upon workmen signing of bond / undertaking being contrary to the provisions of law, the court ought to have appreciated this aspect and allowed the reference. Learned advocate for petitioner relied upon the decision of Division Bench of this Court in case of Swastik Textiles Engineers Pvt. Ltd. Vs. Rajensingh Santisingh and Ors., reported in 1984 (1) GLR 470, contended that the Division Bench has also observed that the management cannot insist upon the workmen signing any undertaking qua they are not going on strike in future and if on workmens' refusal, deny him wages.
5. Learned advocate for the petitioner invited this court's attention to the observation of the Tribunal and contended that the workmen were justified in refusing to sign undertaking, as the workmen cannot compel to sign such undertaking, especially when the demand was pending.
6. Learned advocate for the petitioner further contended that the management under the guise of allegation of 'go slow' in fact attempted to demoralize the unity of the workmen and when there was no forum fixed for assessing the out put or production standard, then, in absence of such criteria, would not be open for the workmen to insist for optimum output and on such a count, insistence for undertaking to be filed. The reasoning adopted by the Tribunal, therefore, being contrary to the provisions of law and observations of the Division Bench of this Court in case of Swastik Textiles Engineers Pvt. Ltd. (Supra), the petition deserve to be allowed.
7. The unreasonability and ill-founded provisions were invoked for justifying the allegation of 'go slow' against the workmen, as the less consumption of electricity is one of the grounds pleaded for justifying 'go slow' on the part of workmen could be for any reason and as there is no nexus between two, employer respondent was not justified in locking out the workmen from legitimate right to work.
8. Another one such ingenious methodology is that, though workmen worked putting complete hour of work, unfortunately, the management was marking lessor work for justifying their wholly illegal allegation, which was ill-founded right from the beginning.
9. Learned advocate for petitioner thereafter contended that the allegation of 'go slow' was rather unfortunate aspect. On the earlier occasion when the company gets orders from abroad, the workmen were paid overtime wages and they were called upon to work for overtime and in the period under consideration, the workmen were not called upon to do any work and during that period under consideration, they were asked to do additional work, which amounted to exploitation of the workmen at the end of the management and hence management's evidence with regard to 'go slow' was wholly ill-founded.
10. Learned advocate appearing for respondent Company invited this court's attention to the finding recorded by the Tribunal at various places in respect of workmens' failure in justifying their claim or establishing their claim of illegal lockout and thus, the findings were submitted to be based upon the evidences and therefore, it was urged that the court may not interfere with the same.
11. Learned advocate appearing for respondent invited this court's attention to the findings recorded by the Tribunal in respect of the testimony of the workmens' witness, which clearly indicated that for the very period in question, the workmens' attempt to invoke provisions of Payment of Wages Act, by way of filing an application and appeal on the rejection order, clearly indicated that lockout was absolutely justified as 'no work no pay' principle would disentitle the workmen to seek any wages. The insistence for the bond or undertaking is absolutely justified as the Tribunal has rightly recorded that bond was not so obnoxious as to infringe any right, much less, right under the Industrial Disputes Act.
12. Learned advocate for respondent thereafter invited this court's attention to page-124 of the compilation and submitted that this was one of the bond or undertaking requested to be signed by the workmen and perusal thereof would satisfy the court that this undertaking cannot be said to be in any manner compelling the workmen to do anything or give up his right and therefore, the reliance placed by the advocate for the petitioner in respect of observation of this court in case of Swastik Textiles Engineers Pvt. Ltd. (supra) would be of no avail.
13. Learned advocate for the respondent thereafter contended that the entire work force in the company barring present workmen signed the undertaking and resume duties and worked, that itself is sufficient to indicate that the workmen before the Tribunal were recalcitrant and were not willing to sign the undertaking, which was not in any manner prejudicial to any one and therefore, the order which is based upon findings of such evidence needs no interference with.
14. Learned advocate for the respondent contended that the Tribunal has not merely considered the reduction in electric consumption as sole ground for justifying the 'go slow' tactics allegation. The Tribunal in fact, mindful of the various facts pleaded and proved which collectively went to establish that there was nothing but a deliberate 'go slow' attempt by the workmen. At this stage, Shri Govindan, learned advocate contended that mere submission would be of no avail as the excise report or data are not produced.
15. Learned advocate for respondent Company further contended that the petition is though filed under Article 226 of the Constitution of India, but the Tribunal is not joined as party and therefore, this would disentitle the petitioner to argue the matter as if it was filed under Article 226 of the Constitution of India and when the Court is examining the matter, as if it is filed under Article 226 of the Constitution of India only, the court may not undertake exercise of appreciating and reappreciating the evidence on record.
16. The Court has perused the papers and heard learned advocates for the parties. The last submission of Shri Naik, learned advocate appearing for respondent appears to be well founded as in light of the decision of the Full Bench of this Court in case of (The) BHAGYODAYA CO-OPERAYTIVE BANK LIMITED VS. NATVARLAL K. PATEL & ANR. Reported in 2011 (3) GLH (FB) 89, in order to maintain writ petition under Article 226, it is incumbent upon the petitioner to join the Tribunal as party respondent and in the instance case, non-joinder of Tribunal, disqualified the petitioner to maintain this petition under Article 226 of the Constitution of India, as even at any stage in the hearing, no request for amendment is made and hence, now the matter is required to be examined as it is filed only under Article 227 of the Constitution of India and accordingly, the criteria for invoking Article 227 would require to be borne in mind while examining the matter. The Tribunal has recorded unequivocally its finding qua the workmen putting lesser output on account of factors which cannot be said to be findings called for any interference. The Tribunal's assessment of testimony of the witness on behalf of the workmen and findings based thereupon that the workmen's attempt to seek redressal of their so called grievance from the wages authority under the Payment of Wages Act have failed also needs to be appreciated in its right prospective, which would go to show that the workmen could not justify their entitlement to seek wages for the period in question.
17. The findings on other aspect of the matter, persuade this court to hold that the detailed order passed by the Tribunal based upon the evidences, needs no interference under Article 227 of the Constitution of India. The decision cited at bar in case of Swastik Textiles Engineers Pvt. Ltd. (supra) would be of no avail to the petitioner as the undertaking or bond, which was discussed and which was insisted to be obtained by the management in respect of workmen, as workmens' right to go on strike on just and reasonable cause, therefore, the management was insisting for workmens' having signed the bond, whereunder, they were to be bonded that in future, they would not resort to strike or they would not go on strike. As against this, if we look at the undertaking / bond which is reproduced at page-124 in the present case, it would indicate that same was not so obnoxious so as to infringe the right of the workmen and the workmen would not undertake any criminal activities and he would not act irresponsible and nor would he create any impediment in the functioning of the fellow workmen and in discharge of the duties.
18. In my view, this undertaking cannot be said to be an undertaking which require any infringement of right of the workmen in any manner. The Apex Court decision in case of K.C.P. Limited Vs. Presiding Officer and others, reported in (1996) 10 SCC 446, has rightly relied upon and is on all four applicable to the present case, in the back drop of the said fact and fact of workmen remained there, in itself was sufficient to indicate that the said was not obnoxious in any manner and under which ground, workmen cannot justify non-resumption of the duty. The aforesaid observations persuade this court to hold that the order impugned being just and proper, needs no interference in exercise of powers under Article 227 of the Constitution of India.
19. In the result, the petition being bereft of merits, deserves rejection and is rejected accordingly. Rule discharged. No costs.
(S.R.BRAHMBHATT, J.) pallav