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Judgment
N.V. Bala Subramanian, J.—The writ petition is for the issue of a writ of declaration to declare the demand of respondents 1 and 2
(hereinafter to be referred to as the management) that the members of the petitioner-union will not be allowed to work unless they sign the
undertaking set out in the order, Ref. SC.V. 774, dated October 24, 1990, as illegal and consequently direct the management not to insist on such
undertaking and pay the wages to the members of the petitioner union for the days they have not provided work on the ground that they failed to
execute the said undertaking.
An interesting question on the power of the management in demanding the undertaking of good conduct arises in the writ petition. But, on the
factual situation, there are diametrically two opposite versions, one given by the writ-petitioner in the affidavit filed in support of the writ petition,
and another given by the management in the counter-affidavit. Since a factual dispute has arisen, it is felt that the validity of the undertakings should
be tested on the basis of the narration of facts given by the management in the counter-affidavit. Though the writ-petitioner-union have accepted
the statement of the management, but, without prejudice to their right to challenge the correctness of the facts stated by the management, the writ
petitioner has agreed that the writ petition can be decided on the basis of the facts stated by the management in the counter- affidavit.
The case of the writ-petitioner is, that the respondent industries is one of a group of companies. The writ petition has been filed challenging the
impugned action of the management against the members of the petitioner union employed in the factory of the respondent management in
Viralimalai. It is not necessary to deal exhaustively with all the facts set out in the affidavit, but the necessary averments are that the management
was not quite happy with the formation of the petitioner-union and there was a hostile discrimination in the matter of wages between the members
of the petitioner-union and the members of the management run trade union, In the affidavit, the settlement, dated January 1, 1989 and a charter of
demands presented by the petitioner-union are referred to. It is also stated that the petitioner had also made a complaint regarding adoption of
certain unfair labour practice by the management. In the affidavit, there is also a reference to the transfer of nearly 100 workers of the petitioner
union and it is stated that an industrial dispute was raised against the transfer of those workers. When the conciliation proceedings were pending
regarding the question of validity of the transfer before the Joint Commissioner, it is stated, the members of the petitioner union were denied work
in all the three factories at Madurai, Pudukkottai and Viralimalai on the ground that they did not sign the form of undertaking demanded by the
management.
The petitioner-union filed writ petitions, Writ Petition Nos. 15506 and 16222 of 1989. In the latter writ petition, the prayer was to issue a writ
of mandamus directing the management to allow the members of the petitioner-union to work in the factory at Viralimalai and to direct the
Government to do everything necessary to protect the fundamental rights of the members of the petitioner union, and the writ petition came to be
dismissed on February 22, 1990. It is stated that as against the judgment, a writ appeal was filed.
In the present writ petition the petitioner-union is challenging the impugned order on the ground that on December 20, 1990, the members of the
petitioner-union, after completing their work in evening shift, changed into their usual clothes from their uniform and before leaving the factory, they
subjected themselves to the usual check at the factory gate, but the security guards at the gate, obviously under the instructions of the management,
insisted on the members of the petitioner-union to remove dhothies completely for checking and when the members requested that the same be
done in the adjoining private room and not in front of everybody, the security guards rejected the same and the workers were allowed to go out
only after removing dhothies completely in the presence of everybody. It is stated that on the next day, i.e. on December 21, 1990, the Secretary
of the petitioner-union and other office-bearers met the Senior Manager of the management and made a protest against the affront to human
dignity. It is stated that the Secretary of the petitioner-union of Viralimalai branch was suspended on December 22, 1990 on certain allegations. It
is alleged that on December 22, 1990 which happened to be a Saturday, there was only a morning shift and the members of the petitioner-union
sat on a hunger strike within the premises of the company during the entire weekly holiday up to 5.00 p.m. on Sunday. On December 24, 1990, it
is alleged that the members of the petitioner-union reported for duty, the management kept them idle without filling the time card and allowing them
to do their job. It is stated that on December 25, 1990, under notice, dated December 25, 1990, which is challenged in this writ petition, the
management insisted that unless the workers sign a fresh undertaking of good conduct, they would not be allowed to enter the factory. It is alleged
that from December 25, 1990 onwards, the members of the petitioner-union were denied access to the place of employment on the sole ground
that they had refused to sign the undertaking as demanded by the management. It is, therefore, stated that there is no provision under the certified
Standing Orders empowering the management to deny work and access to the place of work by imposing any condition of signing an undertaking.
It is stated that the impugned action of the management is a periodic repetition of its efforts aimed at the members of the petitioner- union to drive
them to penury and destroy the petitioner-union. It is therefore, stated that the demand of the management is an unfair labour practice and it is
violative of the fundamental rights guaranteed in Articles 19 and 21 of the Constitution of India. The petitioner-union have therefore approached
this Court stating that the undertaking demanded by the respondent management should be declared as illegal.
As already observed by me, a different version on the incident was narrated by the management in the counter-affidavit, particularly, in Paras 10
and 12 of the counter-affidavit. It is alleged in the counter-affidavit that on December 20, 1990 at about 4.30 p.m., one Muniswaran, styled himself
as the Secretary of the petitioner-union was required to undergo usual security check when he was leaving out of the factory, but he declined to the
request of the security personnel. It is alleged that the said Muniswaran tied his dhothi in a folded fashion and when the security personnel asked
him to unfold his dhothi, he indulged in an unruly behaviour and abused the security personnel. It is also alleged that he also untied his dhothi and
stood in a semi-naked fashion and shouted at the security guard. It is also denied that the security personnel had insisted on the removal of dhothi.
It is also denied that the security personnel had acted on the instructions of the management. It is stated that the security check was a routine and
normal act. It is stated that the security personnel reported the incident to the management and consequently, the said Muniswaran was suspended
from duty on December 22, 1990 at about 1.00 p.m. It is stated that the order of suspension was passed at the close of the working hours and the
said Muniswaran along with his associates refused to go out of the factory and questioned the right of the management to issue the order of
suspension. It is alleged that since they refused to leave the factory, the management lodged a police complaint and even after the arrival of the
police, they did not heed to the persuasion and they remained in the factory till the evening of the next day, i.e. December 23, 1990. It is alleged
that only at about 6.00 p.m. on December 23, 1990, they left the factory and on the morning of December 24, 1990, the workers assembled at
the entrance gate and took note of the abovesaid incident. It is stated that the management insisted on all employees to give an undertaking that
they would not indulge in any unruly activity inside the factory and they would carry on the work normally, in a peaceful manner and large number
of workers gave such undertaking and those who gave the undertaking were permitted inside the factory, whereas the others who refused to give
such undertaking were not allowed inside the factory. It is alleged that on the same day, at about 8.00 a.m. a group of workers, in the presence of
police and revenue officials, gate-crashed into the factory and created tense situation inside the factory. It is further stated that on the next day, i.e.
December 25, 1990, steps were taken to avoid untoward incident and those who were not willing to give the undertaking, but gathered outside,
indulged in abusing the company officials as well as police and revenue officials. It is, therefore stated that in the situation then prevailing, the
management was quite justified in demanding such undertaking.
As already stated, there are different versions of the incident and for the purpose of deciding the writ petition, it is assumed that the version given
by the management is a correct one.
Sri V. Prakash, learned Counsel for the petitioner, has made an elaborate argument and submitted that the denial of work or wages to the
members of the petitioner-union is not permissible under the law. Learned Counsel submitted that the Certified Standing Orders do not impose any
condition on employees to give any undertaking as demanded by the management and the demand of the management to give an undertaking for
entering the factory premises is an affront to human dignity. Learned Counsel submitted that had the members of the petitioner-union indulged in
any indisciplined act, it would have always been open to the management to take disciplinary proceedings by issuing suspension order or adopting
any other procedure, but even during the suspension period, the contract of employment would subsist which would enable the workmen to get
salary or subsistence allowance. Learned Counsel submitted that denial of wages on the ground that the workers should give an undertaking before
entering the factory premises is not within the powers of the management and cessation of employment by the management is not permitted either
under the terms of employment or under the Standing Orders or under the Industrial Disputes Act. Sri V. Prakash, learned Counsel further
submitted that when the workers offered themselves to do the job, the management is required to give employment and if the management does
not give work, on patently unsustainable grounds, the writ petition, for the protection of the wages of the workers would lie. Learned Counsel
further submitted that the Industrial Disputes Act recognises the suspension of work only in the following circumstances, viz. closure of business,
lay-off for reasonable reasons, lockout or strike and in the case of lockout, it should be done on the basis of an industrial dispute and the demand
of bond of good behaviour cannot be regarded as a subject of an industrial dispute. Learned Counsel submitted that under the relevant Standing
Orders, the expression, ""misconduct"" has been defined and there is also a detailed procedure for awarding punishment in the case of misconduct
and when the conduct does not provide for future misconduct, there is right to work and that right cannot be taken away by the unilateral action of
the management. He submitted that the action of the management cannot be regarded as lockout considering the primary condition for treating an
incident as lockout and the action of the management is not sustainable in law. Learned Counsel referred to Section 22 of the Industrial Disputes
Act and submitted that the management has to deal with the workers collectively and if it deals with a single employee, it is not a lockout. Learned
Counsel further submitted that the good conduct is implied in the contract of employment and when an employee is found to have violated the
contract of employment, it is always open to the employer to proceed against the individual employee under the relevant Standing Orders. Learned
Counsel submitted that if the employer has a problem with the workmen and wants to impose a lockout, the employer has to do the same
collectively without affecting the rights of the employees. Learned Counsel submitted that the demand of undertaking would amount to alteration of
the service conditions and hence the demand is in violation of Section 9-A of the Industrial Disputes Act. He referred to Schedule IV item (9) and
submitted that the demand is illegal. Learned Counsel submitted that unilateral act has no place in the industrial relationship and uniformity is
achieved by Model Standing Orders. Learned Counsel also submitted that the action of the management should be fair and reasonable and while
resorting to lockout, it is not open to the management to demand an undertaking. Learned Counsel submitted that workmen are entitled to
subsistence allowance for a patently illegal act of the management and the writ petition is not filed for the enforcement of the terms of contract
which has nothing to do with the Industrial Disputes Act and in each case, good behaviour has an impact on subsistence and depriving the right of
workmen without any basis is unjustified in law. Learned Counsel, therefore, submitted that the writ petition is maintainable, because the insistence
of undertaking is an affront to the human dignity.
Sri S. Jayaraman, learned Counsel for the management, on the other hand, submitted that the insistence of an undertaking is not violative of any
statute and it is to maintain peace, harmony and there is no statutory right on the part of the employees to refuse to sign the undertaking. Learned
Counsel submitted that the consequence of the refusal to sign the undertaking can be regarded as lockout and whether a lockout is justified or
unjustified, or legal or illegal, has to be tested by the Labour Court and where there is a collective alternative remedy to test the correctness of the
lockout, this Court may direct the petitioner to avail the alternative remedy provided under the Industrial Disputes Act. Learned Counsel submitted
that the petitioner-Union has already raised a dispute and when the dispute is pending, this Court may not interfere in the writ petition. Learned
Counsel submitted that it is not an unfair labour practice and there is no change in the conditions of service. Learned Counsel referred to Section 9-
A of the Industrial Disputes Act and submitted that the demand of undertaking is not a new condition and even assuming that it is a new condition,
it did not violate the provisions of Section 9-A of the Industrial Disputes Act and the validity can be effectively tested in a reference before the
Industrial Tribunal and the question whether the action of the management refusing to permit the workmen to enter the factory premises would
amount to lockout is also to be decided in a reference. He also submitted that substantial number of workmen have agreed to sign the undertaking
and there is no violation of the provisions of the Industrial Disputes Act. Learned Counsel submitted that one method of enforcing discipline is to
get an undertaking. The submission of the learned Counsel is that the writ petition is not maintainable and that the management has issued the order
with a view to prohibit certain unpleasant situation and the question whether the management was justified or not has to be adjudicated in a proper
forum. Learned Counsel submitted that maintenance of discipline is a prerogative right of the employer and one method of enforcing discipline is to
demand an undertaking. Learned Counsel further submitted that it is not a new condition coming within the scope of Section 2(k) of the Industrial
Disputes Act. He submitted that it is one of the terms and conditions accepted by number of workers and there is no alteration of service. He
referred to Schedule V of the Industrial Disputes Act and submitted that if there is a lockout, whether the lockout is justified or not has to be
determined by properly constituted forum under the Act.
Sri V. Prakash, learned Counsel for the petitioner, in his reply, submitted that the action of the management is arbitrary and unless there is an
industrial dispute, there cannot be any lockout and the demand of undertaking is not in any way connected with an industrial dispute. He referred to
the Industrial Employment (Standing Orders) Act, 1946, and submitted that it is not a lockout, because indiscipline cannot be a subject-matter of
an industrial dispute and to attract the provisions of the Industrial Disputes Act, there must be a misconduct. According to the learned Counsel, the
denial of work on the basis of the refusal to give undertaking would not fall within the scope of the Industrial Disputes Act and the action of the
management would break the collective bargaining principle. He submitted that the good behaviour of the workmen is ""implicit. According to the
learned Counsel, the management modified the conditions of service and one isolated incident would not form the basis for the management to
modify the service conditions affecting the right of legitimate livelihood of the employees and the Constitution protects such right of livelihood and
the action of the management would amount to break the principle of collective bargaining. He submitted that the spirit of the Industrial Disputes
Act is to resolve disputes between the employer and employee. He submitted that Section 9-A of the Industrial Disputes Act does not deal with
the terms of conditions other than the termination of service and even assuming that there was a partial lockout, the employer should not approach
individual workmen by adopting unfair labour practice and it would amount to negating the principle of collective bargaining. He therefore,
submitted that the Industrial Disputes Act does not fix wages or deal with individuals and individual wages is subject to bilateral relationship and
since wages has been fixed on the basis of the principle of collective bargaining, the modification of the same can be done only by bilateral process
and not by unilateral act. In so far as discipline is concerned, he submitted that it cannot be a subject-matter of industrial dispute. He therefore
submitted that the workmen cannot be deprived of their constitutional and fundamental right and when the constitutional right is under dispute, that
ought to have been permitted to be raised before this Court. The further submission of Sri V. Prakash is that the action of management is ex facie
not founded in law, the petitioner would be justified in approaching this Court. He also submitted that the Industrial Employment (Standing Orders)
Act, 1946, is a special Act dealing with the industrial disputes and it does not deal with the question whether the employer would be entitled to
demand an undertaking and where there is a modification of service, this Court can go into the question whether there is a violation of the
provisions of Section 9-A of the Industrial Disputes Act and whether the modification is fair or not. In so far as the question of maintaining
discipline is concerned, it is a matter of a condition of service which can be changed only in the manner known to industrial law and when Section
9-A is not complied with, it would be void. He also submitted that it would not amount to lockout or closure. The submission of Sri V. Prakash is
that the demand of undertaking of good behaviour is not sustainable in law and, therefore the action of the management should be declared as void.
Before considering the submissions of the learned Counsel for the parties, it would be relevant to notice some of the provisions of the Industrial
Disputes Act. The expression ""industrial dispute"" is defined in Section 2(k) of the Act which reads as under:
...... ''industrial dispute'' means any dispute or difference between employers and employers, or between employers and workmen, or between
workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour,
of any person.
The expression, ""lay-off is defined in Section 2(kkk) and the said expression, ""lay-off reads as under:
''lay-off (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of
coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected reasons
to give employment to a workman whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched.
The term, ""lock-out"" is defined in Section 2(1) of the Act and it would be necessary to extract the said definition as under:
''lockout'' means the temporary 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.
Section 2(q) of the Industrial Disputes Act defines the term,"" strike"" which reads as under:
''strike'' means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal
under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.
Section 9-A of the said Act deals with the provisions regarding change in the conditions of service and u/s 9-A, no employer can change the
conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule without following the procedure
prescribed in Section 9-A of the Act. Section 18 deals with settlements and awards and Section 18(1) deals with the agreement between
employer and workman otherwise than in the course of conciliation proceeding. The said section reads as under:
A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding
on the parties to the agreement.
It is also relevant to notice the provisions of Section 18(3) which reads as under:
A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been
issued under Sub-section (3A) of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall
be binding on
a) all parties to the industrial dispute;
b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or
National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
c) where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the
dispute relates;
d) where a party referred to Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the
establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in
that establishment or part.
Chapter V deals with strike and lockout and it is not necessary to extract the provisions here. Section 24 explains as to when strike or lockout
cannot be regarded as illegal. Fourth Schedule of the Industrial Disputes Act deals with the provisions regarding the conditions of service which
can be changed on the notice being given. Clause (9) of the Fourth Schedule is relevant which reads as under:
Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in Standing Orders.
Unfair labour practice is enumerated in the Schedule Clause (8) of Fifth Schedule dealing with undertaking of good conduct is relevant and the said
clause reads as under:
To insist on individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work.
The question whether there can be a demand of a bond of good conduct by the management from its employees as a pre-condition for their
entry into the factory would depend upon the facts of each case and it cannot be postulated that the requirement of the execution of bond of good
conduct would apply in all circumstances. I have already noticed that Clause (8) of Fifth Schedule deals with unfair labour practices and insisting
on individual workmen who are on a legal strike to sign a good conduct bond as a pre-condition to allowing them to resume work is an unfair
labour practice. The submission of Sri. Jayaraman, learned Counsel is that in all other cases, other than those falling under Clause (8) of the Fifth
Schedule, it cannot be regarded as an adoption of unfair labour practice and he also referred to Section 18(1) of the Industrial Disputes Act and
submitted that under that provision, it is open to an employer to enter into a settlement with a workman otherwise than the one taken during the
course of conciliation proceedings, such agreement would bind the parties to the agreement: It is his case that it is permissible for the management
to enter into an individual contract with a workman otherwise than a conciliation proceedings which would be binding on the parties to the
agreement and since majority of the workers have agreed to execute the bond of good conduct and have also executed the said bond, there is no
violation of any of the provisions of the Industrial Disputes Act in requiring employees to execute such bond. He also referred to the definition of
lockout and submitted that it is a case of lockout. Section 2(b) defines the expression, ""lockout"" and there are three contingencies contemplated in
the said definition, viz.
a) temporary closure of business or employment;
b) suspension of work; and
c) refusal by an employer to continue to, employ any number of persons employed by him.
Admittedly, it is neither a case of temporary closure of business, nor is it a case of suspension of work as the work was going on. The only
question is whether the act of refusal by the management to continue to employ the members of the petitioner- union until they sign the bond of
good conduct can be regarded as a lockout.
I am of the view that the question of validity of the proceedings issued by the management cannot be decided in isolation of or de hors the
factual situation which led to the issue of the impugned proceedings. The. question whether the action of the management would amount to lockout
or not, in my view, has to be decided by a properly constituted forum.
The Supreme Court in Management of Kairbetta Estate, Kotagiri Vs. Rajamanickam and Others, , was dealing with a case where the manager
of a management company was assaulted by some of the workmen of the management and he suffered certain injuries. There was also a threat to
the staff working in a particular division and the management received a communication regarding the threat by workmen and that particular
division was closed. In that factual situation, the question that arose was what is the difference between ""lockout"" and ""closure"", the Supreme Court
considered the matter and laid down the law as under 1960 II LLJ 275
Lock out can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial
demands, a lockout is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept
his demands. In the struggle between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of
lockout available to the employer and can be used by him. The use of both the weapons by the respective parties must, however, be subject to the
relevant provisions of the Act. Chapter V which deals with strikes and lockouts clearly brings out the antithesis between the two weapons and the
limitations subject to which both of them must be exercised. Thus the concept of lockout is essentially different from the concept of lay off, and so
where the closure of business amounts to a lockout u/s 2(1) it would be impossible to bring it within the scope of lay-off u/s 2(kkk). As observed
by the Labour Appellate Tribunal in Presidency Jute Mills Company Ltd. v. Presidency Jute Mills Company Employees Union 1952 Lab AC 62,
in considering the essential character of a lockout its dictionary meaning may be borne in mind. According to the dictionary meaning lockout means
a refusal by the employer to furnish work to the operative except on conditions to be accepted by the latter collectively.
In General Labour Union (Red Flag) Bombay Vs. B.V. Chavan and Others, , the Supreme Court again considered the question, what is the
difference between ""lockout"" and ""closure"" and laid down the following test to determine when the action of the management would be regarded as
lockout 1985 I LLJ 82
Lockout has been defined in Section 2(1) of the Industrial Disputes Act, 1947 (ID Act for short) to mean the closing of a place of business,
or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by mm. In lockout the employer
refuses to continue to employ the workmen employed by him even though the business activity is not closed down nor intended to be closed down.
The essence of lockout is the refusal of the employer to continue to employ workmen. There is no intention to close the industrial activity. Even if
the suspension of work is ordered it would constitute lockout. On the other hand closure implies closing of industrial activity as a consequence of
which workmen are rendered jobless. Section 22(2) of the Industrial Disputes Act prohibits an employer in a public utility services from locking
out any of his workmen without giving notice as provided therein. Section 23 prohibits an employer from declaring a lockout in any of the
eventualities mentioned therein. Lockout in contravention of Section 23 is declared illegal. Section 26 of the ID Act provides that any of the
practices listed in Schedules II, III and IV would be an unfair labour practice. Imposing and continuing a lockout deemed to be illegal under the
Act is an unfair labour practice.
In Ramachandra Spinning Mills Vs. State of Madras and Another, a learned single Judge of this Court had occasion to consider what is meant
by a lockout within the meaning of the Industrial Disputes Act and this Court held that the expression, ""lockout"" within the meaning of the Industrial
Disputes Act should be construed as under 1957-I-LLJ-90:
Absence from work even of a considerable number of persons would not become a strike unless there is an understanding behind it, and usually
such an understanding is accompanied by a desire to put pressure on the employer. When a number of employees abstain from work, the test as to
whether such abstention amounts to a strike or not would be found in the intention behind such abstention. If their intention is to put pressure and if
with that intention they agree together to stay away from work, then there would be a strike. The lockout is the corresponding weapon in the
armoury of the employer. If an employer shuts down his place of business as a means of reprisal or as an instrument of coercion or, as a mode of
exerting pressure on the employees or, generally speaking, when his act is what may be called an act of belligerency there would be a lockout. If,
on the other hand, he shuts down his work because he cannot for instance get the raw materials or the fuel or the power necessary to carry on his
undertaking or because he is unable to sell the goods he has made or because his credit is exhausted or because he is losing money, that would not
be a lockout.
I hold that the questions whether suspension of work is a lockout or not, is it bona fide or not and is it against the employees concerned have
to be examined in each case and unless it is established what was done by the management is not a lockout, it is not open to the petitioner to claim
that the validity of the proceedings has to be tested on the basis that there was no lockout at all.
In Talcher Coalfield Ltd. v. Talcher Coalfield Workers Union 5 F.J.R. 180, the Labour Appellate Tribunal of India had occasion to consider
what is meant by lockout within the meaning of the Industrial Disputes Act and after quoting an earlier decision in Presidency Jute Mills Company
Ltd. v. Presidency Jute Mills and Company Employees Union (supra) made the following observation which would be relevant for the purpose of
this case.
The definition of ''lockout'' as given in the Oxford Dictionary is that it is ''an act'' of locking out a body of operatives, i.e. refusal on the part of an
employer or employers acting in concert, to furnish work to their operatives except on conditions to be accepted by the latter collectively"". The
same idea was expressed by the Court of Appeal in Re: An Arbitration between Richardson and Samuel and Company 77 L.T. 479, a case which
was decided on general principles untrammeled by any statutory definition of the term. In our opinion, the very use of the term necessarily implies
that the act of the employer is prompted by reason of a dispute with his workmen.
The expression, ""lockout"" has also been considered in number of cases. Learned author G.B. PAI in his book, LAW OF EMPLOYMENT
(Vol. 1) made the following observation regarding the meaning of lockout:
Section 2(1) defines a lockout 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. It may be relevant to point out that the definition of lockout contained in Section 2(e) of the
Trade Disputes Act, 1929 (VII of 1929) had an additional clause that such closing, suspension or refusal occurs in consequence of a dispute and is
intended for the purpose of compelling those persons or of aiding another employer in compelling persons employed by him to accept terms or
conditions of or affecting employment. This clause has now been deleted. Even so, the essential character of a lockout continues to be substantially
the same. Lockout can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their
industrial demands, a lockout is a weapon available to the employer to persuade by coercive process the employees to see his point of view and to
accept his demands. In the struggle between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon
of lockout available to the employer and can be used by him. The use of both the weapons by the respective parties must, however, be subject to
the relevant provisions of the Act. Chapter V which deals with strikes and lockouts clearly brings out the antithesis between the two weapons and
the limitations subject to which both of them must be exercised. As observed by the Labour Appellate Tribunal in Presidency Jute Mills Company
Ltd. v. Employees Union (supra) in considering the essential character of lockout, its dictionary meaning may be borne in mind. According to the
dictionary meaning lockout means a refusal by the employer to furnish work to the operative except on conditions to be accepted by the latter
collectively. The word refusal by an employer to continue to employ any number of persons employed by him in Section 2(1) do not include the
discharge of an employee. The Act treats strikes and lockouts on the same basis. It treats one as the counterpart of the other. A strike is a
Weapon of the workers while a lockout that of the employer. A lockout can be declared with the avowed object of preventing violence and threat
to life and property may be justified on facts in a given case. In that case although it will be lockout in another sense it may not be a lockout within
the meaning of Section 3(24) of the Bombay Industrial Relations Act, 1946, corresponding to Section 2(1) of the Industrial Disputes Act, 1947. In
such a situation it may be difficult to prove that it is an illegal lockout since in an illegal lockout the sole object is to compel the workmen to accept
the terms of the employer which the worker considers as unreasonable and oppressive.
The Supreme Court in Feroz Din and Others Vs. State of West Bengal, considered the definition, ""lockout"" and held as under at pp. 248-249
of LLJ:
... the Industrial Disputes Act treats strikes and lockouts on the same basis; it treats one as the counterpart of the other. A strike is a weapon of
the workers, while a lockout that of the employer. A strike does not of course, contemplate the severance of the relation of employer and
employee; it would be strange, in these circumstances, if a lockout did so ... it must be held that the words ''refusal'' by an employer to continue to
employ any number of persons employed by him do not include the discharge of an employee. These words have to be read with the rest of the
definition and also the word ''lockout''. The other parts of the definition contemplate no severance of the relation of employer and employee. The
word "" lockout"", as stated in Presidency Jute Mills Company case (supra), in its dictionary sense means refusal on the part of an employer to
furnish work to his operatives except on conditions to be accepted by the latter collectively.
In Andhra Pradesh Electrical Equipment Corporation Vs. Andhra Pradesh Electrical Equipment Corporation Staff Union and Others, . Sri K.
RAMASWAMY, J. (as His Lordship then was) held that the lockout cannot be said to be an industrial dispute within the meaning of Section 2(k)
and it is open to the management to exercise its right at its convenience as an instrument of coercion or weapon of reprisal. Though in the case
before the Andhra Pradesh High Court, a reference to an existing dispute between the management and worker was already made by the
Government before the Labour Court u/s 10(1) of the Industrial Disputes Act, the question that arose before the Andhra Pradesh High Court was
whether it would be open to the Government to exercise its power u/s 10(3) of the said Act to prohibit the lockout. The ratio decidendi of the case
was that in so far as the lockout is concerned, it is an unilateral act of the management and the right can be exercised as an instrument of coercion
or weapon of reprisal in the hands of the management. In my view, it is not necessary to express any opinion on the question whether there should
be a prior industrial dispute before the management declared the lockout. No doubt, it may be true that in certain circumstances where there was
no reference u/s 10(1) of the Industrial Disputes Act, the Government may not be able to exercise the power u/s 10(1) of the said Act to prohibit
the lockout, but it is always open to the Industrial Tribunal to adjudicate on the validity of the lockout.
Therefore, in each case, when the employer claims that it was a lockout, the Labour Court has to determine the question whether the employer
is guilty of unfair labour practice or not on the basis of the evidence that may be put forward before it, or whether it was a closure or a device to
threaten to terminate the services of workmen. It is open to the employer to justify the lockout on the facts of the case and it is equally open to the
workmen to contend and establish that what was done was not a lockout at all as the action of the management was not done in pursuance of a
dispute between the employer and employees. Therefore, unless it is decided whether action of the management is a lockout or not, the validity of
the impugned proceedings cannot be decided in one way or the other. In my view, if the Tribunal holds that there was a lockout, then it would be
open to the employer to insist on the execution of a bond of good behaviour as a pre-condition for the employees to enter the factory premises. I
am unable to accept the submission of the learned Counsel for the petitioner that the employer should allow the employees to enter the premises
and if the employees cause damage to the machinery or if there is any assault between the employees, it would be open to the employer to suspend
the particular employee who indulged in such activities and till then, the employer would have no right to call upon the employees to execute a bond
of good behaviour.
In this connection, it is relevant to notice mat it is only during the period of strike, if the employer insists on the execution of a bond of good
behaviour, that would be regarded as an act of unfair labour practice, and where there is a lockout, if the same action was done by the employer
otherwise than during the period of strike, that would not amount to adoption of unfair labour practice. The definition of the expression, ""lockout
shows that where there was refusal by the employer to continue to employ any number of persons employed by him, that would amount to lockout
and in a lockout, it is open to the employer to impose conditions for the entry of employees into the factory premises. In my view, by requiring
employees to execute such a bond, the principle of collective bargaining is not lost. Section 18(1) of the Industrial Disputes Act, on the other hand,
provides that it is open to the employer to enter into a contract or settlement otherwise than during the course of conciliation proceedings which
would be binding on the parties.
In this connection, it is relevant to notice a Division Bench decision of this Court in Madras Labour Union Vs. Binny Ltd. (Buckingham and
Carnatic Mills) and others, wherein this Court considered the effect of Section 18(1) of the Industrial Disputes Act and held that there is no
necessity for a pre-existing industrial dispute or an apprehension of an industrial dispute for the management to arrive at a settlement with individual
workmen u/s 18(1) of the said Act and no dispute can be settled between the employer and workmen otherwise than in the course of conciliation
proceeding u/s 18(1) of the Industrial Disputes Act
I therefore hold that the question whether the demand of the employer to execute a bond of good behaviour is valid or not has to be tested on
the facts of each case and there is no universal proposition that it is bad in all cases or it is valid in all cases. Had the employer insisted on signing a
bond, in normal circumstances, then, the situation would have been different, but where the situation warranted or led the employer to form a belief
that there would be a threat to machine or industrial disharmony, or where there was some action on the part of the employees which led the
employer to form a belief that he should declare a lockout, the action of the employer in demanding a bond of good behaviour might be justified on
the facts of the case.
I am unable to accept the submission of the learned Counsel for the petitioner that since a new discipline was ought to be enforced, there is a
change in the conditions of service and the provisions of Section 9-A of the Industrial Disputes Act are attracted. The question whether there was
a violation in complying with the conditions stipulated in Section 9-A of the Industrial Disputes Act would depend upon the question whether the
majority of the employees have accepted the new terms, and when majority of the employees have accepted and acted upon the new terms, it
cannot be held that there was a violation of the provisions of Section 9-A of the Industrial Disputes Act. Therefore, in each case, it has to be
decided whether majority of the employees have accepted the new terms and conditions of employment and if majority of the employees have
accepted, it is not open to minority workmen to contend that there is a change in the conditions of service attracting the provisions of Section 9-A
of the Industrial Disputes Act. I hold that there are certain disputed facts arising out of the facts of the case which has to be established before the
Industrial Tribunal, and if the Tribunal comes to the conclusion that the action of the management would amount to a lockout the employer would
be justified in demanding the bond of good behaviour. On the other hand, if the Tribunal comes to the conclusion that the act done by the employer
would not amount to a lockout, then the employer would not be justified in demanding execution of a bond of good behaviour.
I am therefore of the view that the validity of the letter of the management cannot be tested unless the factual situations are established in a
proper forum and, therefore, I am not inclined to entertain the writ petition. The Supreme Court in Rajasthan State Road Transport Corporation
and Another Vs. Krishna Kant and Others, held that Labour Court and Industrial Tribunal are competent to go into the dispute and the question
whether a dispute falls within the provisions of the Industrial Disputes Act that should be adjudicated either by the Labour Court or by the
Industrial Tribunal as the case may be. The Apex Court held as under, 1995-II-LLJ-728
...... The dispute involving the enforcement of the rights and liabilities created by the certified Standing Orders has necessarily got to be
adjudicated only in the fora created by the Industrial Disputes Act provided that such dispute amounts to an industrial dispute within the meaning of
Sections 2(k) and 2-A of the Industrial Disputes Act, or such enactment says that such dispute shall be either treated as an industrial dispute or
shall be adjudicated by any of the fora created by the Industrial Disputes Act. The civil Courts have no jurisdiction to entertain such suits. In other
words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the ndustrial Employment Standing
Orders is an industrial dispute, if it satisfies the requirements of Sections 2(k) and 2-A of the Industrial Disputes Act and must be adjudicated in the
for a created by the Industrial Disputes Act alone. This would be so even if the dispute raised or relief claimed is based partly upon certified
Standing Orders and partly on general law of contract.
Though the decision of the Supreme Court was with reference to the maintainability of a suit, the ratio of the decision would equally apply in
considering the maintainability of the writ petition. Since I have held that the matter should be adjudicated first by the forum constituted under the
Industrial Disputes Act, it is not necessary to express any opinion on the question whether the writ petition is maintainable or not as against a
company. The result is that the writ petition is dismissed, but in the circumstances of the case, there will be no order as to costs.