1. This Writ Petition has beet filed by the management of Aravali Forgings Limited, Bhiwadi, District Alwar and Mr. R.K. Mittal, Joint Managing Director of this Company challenging the validity of the reference made to the Labour Court vide Annexure-5, dated 19-1-1982 which reads as under : -“LANGUAGE”2. The undisputed facts of this case as submitted by Mr. Bhandari are that there was some 'Tool down stay in strike' in the petitioners factory from 2-12-1981. On 6-12-1981, the management notified that those employees who were on 'tool down stay in strike' and who want to come on work, would be allowed to enter the premises on giving the following undertaking. The undertaking-in-terms contains the admission of an employee on the following :(i) Thai tool down stay in strike commencing from 2-12-1931 is illegal,(ii) that he would not claim wages for this period,(iii) that he would not participate in any strike for a period of one year and will not put any demand in view of the Arbitration Award dated 19-5-1981,(iv) that he would assures that he would work honestly efficiently in the factory.A note was also contained in this undertaking that those employees who would not give this undertaking would not be allowed to join and it will be presumed that he is continuing in tool down stay in strike and for that separate proceedings will be taken against them.3. In pursuance to the above, many employees have undertaking, though the exact numbers have not been given by the petitioner in his writ petition anywhere as to how many employees gave the undertaking and joined work. In Paras Nos. 13, 14 and 15 of the Writ Petition, all that has been mentioned is that workers were on strike and leaders instigated not to respect the earlier Award, but nowhere it has been mentioned as to how many workers were in fact on strike and how many of them joined after giving the above undertaking. Ali that has been mentioned is that the strength of the petitioner's company's factory was more than 100.4. Now the above reference is being challenged firstly on the ground that there is no industrial dispute because the Government itself later on has come to the conclusion that on the basis of 'no work no pay' the employees who were on strike, are not entitled to any wages.5. Mr. Bhandari as submission is that since the Government itself has accepted that no salary is to be paid and no reference is to be made under Section 12(5) of the Industrial Disputes Act on the point by order dated 3rd September, 1982, no industrial dispute exists. I am unable to accept the above contention of Mr. Bhandari The reference was made by Annexure (5) on 19-1-1982 and, therefore, the opinion of the Government dated 3rd September, 1982 is not relevant. Besides it, admittedly, Annexure-6 the Notification dated 6-12-1981 contains many conditions, which I have extracted above and therefore, whether such a direction by the management of the employees to give an undertaking which they would not be allowed to be taken on work, is just and proper and is not unfair labour practice is surely a matter which forms an industrial dispute between the parties.6. It was then argued that since there was an earlier statement in a form of an Arbitration Award, no industrial dispute can be raised during the prescribed period of one year of that Award. In the very nature of things the award did not contemplate the taking of such undertaking as Annexure-6 and therefore, whether taking of an undertaking from an employee, is just or not, is not covered by the earlier award.7. Lastly, it was argued that the number of employees were more than 100 and therefore, the reference could not have been made to the labour court, but it could have been made only to Industrial Tribunal. On enquiry from Mr. Bhandari whether he can point out any averment in the writ petition or any document submitted with it by which it can be ascertained as to what was the exact number of the employees, which were represented by the Aravali Forgings Employees Union, Bhiwadi and who were required to give an undertaking before joining on account of remaining on the strike, Mr. Bhandari pointed out Para No. 22 for this purpose. However, a reading of Para No. 22 only shows that according to the statement of claim, the strength of the petitioners-company's workman was more than 100. In my opinion, it is the strength of the employees who were on strike and who were required to join after giving an undertaking, which is material and not the strength of the workmen, which were concerned with the claim. Since the petitioners have not even dared to assert in the writ petition that more than 100 persons were on strike in the relevant period and they were effected by this notice, it is not necessary to pursue the matter any further in this respect.8. Mr. Bhandari referred to a decision of M/s. Kashmir Ceramics Ltd. v. Labour Court and others, 1980 Lab. (4) 192 in which the question was regarding reference to the Labour Court or the Industrial Tribunal. In that case, before the Labour Court, an issue was framed and the parties were asked to lead evidence. At Page No. 194 the High Court has observed that on the petitioner's plea that more than 100 employees were effected by this order that the respondent No. I raised a specific issue on the point and directed the petitioner to prove the same by leading evidence. But without waiting to record, and evidence, the Labour Court held that he had no jurisdiction to go into this issue.9. It was in these circumstances that the High Court held that the reference itself was being without jurisdiction.10. In the instant case, as I have mentioned above there is no specific allegation in the writ petition that the workman, who were on strike and who were required to fill in undertaking form, were more than 100. In the absence of specific allegation by the Management, it is not possible to quash the reference.11. Moreover, if the management is of the opinion that more than 100 persons are involved in this reference and they were on strike and were required to give undertaking and on account of that a reference should be made to the Industrial Tribunal only then it was their duty to point out to the Government first about this infirmity so that the technical question regarding the forum can be decided again by the Government.12. It was then argued that the reference was made without waiting for the report of the Conciliation Officer. In my opinion whether an industrial dispute has arisen or not, can be determined by the Government in several ways. Of course one of the conventional way is the report of the Conciliation Officer. Assuming that the report was not there before the Government at that time, I am of the opinion that Section 10 in terms nowhere provides that no reference can be made in such circumstances.13. From the facts, which have been narrated in the writ petition, itself, it is clear that there is serious dispute between the labour and the management regarding the question about the validity of the undertaking and therefore, it is just and proper for a proper functioning of the Industry that such question sho
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uld be decided in a reference in a legal manner rather than creating a situation where the labour and management comes in the confrontation again and again.14. Mr. Bhandari submitted that it may be made clear that this judgment will not debar the petitioners from raising objections before the Labour Court that the workman effected by the aforesaid undertaking, were more than 100 and on account of that the reference cannot be considered by the Labour Court. Except what I have said above, it is open to any of the parties to challenge jurisdiction of considering the reference on any valid legal ground and the judicial or quasi-judicial tribunal is expected to decide the question according to law.15. The result of the above discussion is that the writ petition fails and is hereby dismissed.