IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.34223/2017 (L-RES) BETWEEN:
M/s. Tamura Elcomponics Technologies Pvt. Ltd., (Earlier Known as Romarsh Elcomponics India Pvt. Ltd.), Plot No.29-P1, Hirehalli Industrial Area, Tumkur-572 168, India, Represented by its General Manager-Operations Mr. Azam Pasha (Major). …Petitioner (By Sri K. Kasturi, Senior Advocate for Sri K. Mohan Kumar and Sri Pradeep Kumar J., Advocates) AND:
1. The Commissioner of Labour, Karmika Bhavana, Bannerghatta Road, Bangalore-560 029.
2. Tamura Elcomponics Employees’ Association, Plot No.29-P1, Hirehalli Industrial Area, Tumkur-572 168, Represented by its General Secretary Mr. Girish R. (Major). ... Respondents (By Sri K. B. Narayana Swamy, Advocate for C/R-2; Notice not ordered to R-1) This writ petition is filed under Article 226 of the Constitution of India praying to quash order dated 28.12.2016 passed by respondent No.1 at Annexure-O.
This writ petition coming on for preliminary hearing this day, the Court made the following:
O R D E R M/s. Tamura Elcomponics Technologies Pvt. Ltd., the petitioner, has challenged the legality of the order dated 28.12.2016, whereby the learned Labour Commissioner, the respondent No.1, has granted permission to the Trade Union, the respondent No.2, to initiate prosecution against the petitioner for violating the settlement dated 9.11.2011.
2. The brief facts of the case are that the petitioner Company is engaged in the manufacture of transformers and inductors, and has about eighty-eight employees. On 9.11.2011, the petitioner and the Trade Union, the respondent No.2, entered into a settlement under Section 12(3) of the Industrial Disputes Act, 1947 (‘the Act’ for short). However, immediately after entering into the settlement, the workers of the establishment went on an illegal strike from 8.8.2012 to 15.10.2012, i.e., for a period of fifty-nine days. Hence, the petitioner was left with no other option, but to approach the Civil Court for seeking temporary injunction. Therefore, it filed a civil suit, namely O.S.No.1179/2011. The learned Civil Court granted an injunction in favour of the petitioner. Due to the injunction order, the illegal strike was called off after a period of fifty-nine days.
3. However, again on 6.12.2013, the Trade Union went on an illegal strike; this time for a period of fifty-two days. The strike had taken such turns so as to force the petitioner to seek protection from the jurisdictional police by filing two writ petitions before this Court, namely W.P.No.36169/2012 and W.P.No.58236/2013. The petitioner also had to approach the appropriate Government. The appropriate Government, by its order dated 26.10.2012, prohibited the strike resorted by the respondent Union. Aggrieved by the fact that the workers were denied the wages for the period of illegal strike from 8.8.2012 to 15.10.2012, the respondent No.2 raised an industrial dispute before the Industrial Tribunal in reference No.28/2012. However, by order dated 28.9.2015, the reference was dismissed by the learned Industrial Tribunal. According to the petitioner, due to the illegal strike, and the indiscipline maintained by the workers, the petitioner has suffered a loss of Rs.25 Crores.
4. Even as the things stood as such, the respondent Union approached the Assistant Labour Commissioner with the complaint that it is the Management which is violating the terms of the settlement dated 9.11.2011. The petitioner filed its objections. However, by order dated 28.12.2016, the learned Labour Commissioner has permitted the respondent Union to prosecute the petitioner under Section 34 and 39 of the Act. Hence, this petition before this Court.
5. Mr. K. Kasturi, the learned Senior counsel for the petitioner, has drawn the attention of this Court to Clause 24 of the settlement. According to Clause 24(c), the Union and the workmen had agreed to guarantee the production and productivity increase by 20% as desired by the Management, and also to adhere to the norms of incentive scheme. They further agreed to keep the machines, the tools and the working area clean and tidy with full discipline, and promised that “it shall be the concern and responsibility of each workman”. They further promised under Clause 24(d) that they will co-operate with the Management to achieve this. The Union/workmen re- assured the Management under Clause 24(f) that they shall abide by the provisions of the Certified Standing Order. According to the learned Senior Counsel, despite these assurances and promises made by the Union/workmen, immediately within nine months of the settlement dated 9.11.2011, the Union went on an illegal strike for fifty-nine days, and subsequently for fifty-two days. The Union has also resorted to “go slow” tactics. Such indiscipline has adversely affected the production. Therefore, it is the respondent No.2, which has failed to adhere to the settlement. Yet, the learned Labour Commissioner, according to the learned Senior Counsel, has ignored these relevant facts.
Secondly, the impugned order is not even a speaking order. For, despite the fact that the petitioner had taken a categorical stand that it has suffered a loss of Rs.25 Crores, due to an illegal strike tactics, and indiscipline of the Union members, the learned Labour Commissioner has not even discussed the contentions raised by the petitioner. Instead, the learned Labour Commissioner has merely quoted the conditions of the settlement, which were allegedly violated by the petitioner. Without assigning any reasons, the learned Labour Commissioner has concluded that the petitioner has violated certain settlement conditions. Thus, the permission given by the learned Labour Commissioner is legally unsustainable. Hence, the impugned order dated 28.12.2016, deserves to be set aside by this Court.
6. On the other hand, Mr. K. B. Narayana Swamy, the learned counsel for the respondent No.2, has vehemently contended that the respondent No.2 had no other option but to resort to illegal strike, as it is the petitioner who had failed to comply with the settlement.
Secondly, that the petitioner has not produced any evidence to show that it has suffered a loss of Rs.25 Crores.
Thirdly, that despite the complaint of the respondent No.2 that the petitioner is violating the settlement dated 9.11.2011, the petitioner has again entered into a settlement with the respondent No.2 on 26.11.2015. According to Clause 8(b), the Union and the Management agree to amicably settle their disputes, and to resolve all pending matters filed before the Commissioner of Labour/ALC/Civil/Labour Courts. Therefore, according to the learned counsel, it is the petitioner who has agreed to enter into fresh settlement. Hence, the contentions raised by the learned Senior Counsel, that it is the respondent No.2 who have violated the settlement dated 9.11.2011 is clearly a misplaced argument. Hence, the learned counsel has supported the impugned order.
7. Heard the learned counsel for the parties, and perused the impugned order.
8. Undoubtedly, both the Management and the workmen are the two wheels of a chariot. Until and unless the Management and the workmen work in harmony and ensure industrial peace, the establishment cannot function or earn a profit. It is with this view that the industrial laws try to ensure industrial peace and industrial harmony. While the labour laws are in favour of the labour class, but simultaneously they also protect the interest of the Management. Thus, a fine balance has to be struck between the interest of the workers, and the interest of the Management.
9. A settlement is an agreement between the Management and the workers where both parties assure each other that they shall abide by certain conditions, and norms in order to ensure smooth functioning of the establishment. Therefore, the settlement can never be interpreted in favour of one party, while ignoring the fact that the said party has failed to fulfill its part of the settlement. Thus, before the learned Labour Commissioner could grant permission to the respondent No.2 to prosecute the Management, the learned Labour Commissioner should have examined the issue whether the respondent No.2 has fulfilled its part of the settlement or not?
10. However, a bare perusal of the impugned order clearly reveals that the learned Labour Commissioner has viewed the entire case from the point of view of the respondent No.2. Despite the fact that the petitioner had raised certain contentions mentioned herein before, the learned Labour Commissioner has not even bothered to refer to those contentions or to deal with those contentions, and to properly apply its mind. Instead, the learned Labour Commissioner has merely quoted certain conditions of the settlement, and without assigning any reasons jumped to the conclusion that these conditions have been violated by the petitioner. Therefore, the impugned order not only suffers from vires of non-application of mind, but also tantamounts to being a non-speaking order.
11. According to Clause 24 of the settlement, certain promises were made by the respondent No.2, namely that the work force will work in such a disciplined manner so as to ensure that the production is increased by 20%. The respondent No.2 had also assured the Management that the workmen will maintain the machines, tools and working place clean and tidy, and will also abide by the Model Standing Order. Despite their assurance to the Management, just within nine months, the respondent No.2 went on an illegal strike for fifty-nine days. It is, indeed, difficult for any establishment to function for almost two months, when the workers are on an illegal strike. Even if the contentions raised by the learned counsel for the respondent No.2 were to be accepted, for the sake of argument, that it is the Management which had failed to implement the settlement, despite lapse of nine months, even then the respondent No.2 is unjustified in going on an illegal strike. In case the respondent No.2 had any grievance with regard to the non-implementation of the settlement, the Act provides with sufficient procedures, to redress the grievance of respondent No.2, instead of going on an illegal strike. Hence, the illegal strike can neither be condoned, nor appreciated by any Court of law. Moreover, after observing an illegal strike for fifty-nine days, admittedly the respondent No.2 again went on an illegal strike for fifty-two days. Thus, undoubtedly it is the respondent No.2 which has failed to implement its side of the settlement. It has failed to ensure that due to its hard work, the productivity would increase by 20%. Surprisingly, these facts have been totally ignored by the learned Labour Commissioner. Since the learned Labour Commissioner has ignored these glaring facts, it has permitted the respondent No.2 to take benefit of its own wrong. But no person can be permitted to take benefit of its own wrong in law.
12. Despite the fact that the petitioner had claimed that it has suffered a huge loss of Rs.25 Crores, the learned Labour Commissioner has ignored even this glaring fact. Instead, the learned Labour Commissioner has saddled the petitioner with the onerous responsibility of fulfilling the settlement, while ignoring the fact that the petitioner has already suffered a grave loss. This unilateral vision of the learned Labour Commissioner is rather surprising when the learned Labour Commissioner is bound to balance the interest of the Management, and the interest of the workmen. But the learned Labour Commissioner has failed to discharge its judicial duty in the present case.
13. For the reasons stated above, this petition is allowed.
The impugned order dated 28.12.2016, is set aside. No order as to cost.
Sd/- JUDGE MD