Maruti Udyog Employees Union ...

vs State Of Haryana on 15 December, 2000

Punjab-Haryana High Court

Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000
Author: S Sudhalkar
Bench: S Sudhalkar
JUDGMENT S.S. Sudhalkar, J.
1. (Order regarding interim prayer) - The pelitioners are the employees' Union and the Secretary of
the Union. The employer is Maruii Udyog Limited respondent No. 4 and respondent No. 5 is
Managing Director of respondent No. 4. By this writ petition, (he petitioners have prayed for various
reliefs such as:
1. directing respondent No. 1 10 refer the dispute between petitioner No. 1 and respondent No. 4 for
adjudication under Section 10 of the Industrial Disputes Acl (hereinafter referred to as the "Act");
2. to direct respondent No. 2 to admit the dispute in conciliation and to recommend to respondent
No. I that the said dispute be referred for adjudication;
3. to direct respondent No. 1 to commence prosecution of respondents No. 6 and 7 (Note: (here are only five respondents in this case) under Section
25T of theAcl;and
4. to direct respondents No. 4 and 5 to allow the workmen of respondent No. 4 to join duty without
insisting on their signing a bond of good conduct.
2. The petitioners have also prayed for interim relief for a direction to be given to respondents No. 4
and 5 (o allow all the workmen to join their duty immediately, without insisting upon signing of
"Good Conduct Bond", during the pendency of this petition.
3. I have heard learned Counsel for the parties regarding interim relief.
4. The case of the petitioners is that on 6.2.1998, the management of respondent No. 4 and
respondent No. 1 had entered into a settlement for a duration of four years commencing from
1.4.1996 which was to expire on 31.3.2000. New wage settlement was due by March, 2000. The
workers were disappointed because of the non-implementation of the pension scheme and the
incentive scheme as per the 1998 settlement. On 23.3.2000 respondent No. 1 submitted a charter of
demands and assured the management of its commitment to industrial peace and sought a meeting
to arrive at (he settlement without confrontation. Prom April, 2000 to July, 2000, respondent No. 4
was pre- occupied with his policy issues, such as, introduction of "ALTO" Model and on assurance
that the Board of Directors would deliberate on the said demands, petitioner No. 1 had kept their
agitation for a new charter of demands in abeyance. During the period June, July and August, 2000,
respondent No. 4 had suspended its production of cars as the market demand had taken a sharp
decline. The production was suspended in September also for the same reason.
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

5. It is contended that because of the persistent refusal even to consider the legitimate demands,
respondent No. 1 gave its intention to go on strike. The said notice is dated 18.9.2000 and is at
annexure P/3 in the petition. By the said notice, respondent No. 4 was informed that in case the
demands are not met immediately, the workers may be forced to go on hunger strike, tool- down
strike, fast unto death and total strike without any further notice. On September 19, 2000, the
workers started their relay hunger strike at the company gate. The management suspended 9 union
activists and warned petitioner No. 1 with dire consequences if it pursued with its agitation.
However, the employees'Union merely resorted to a token two-hour strike per day from 3.10.2000.
On October 12,2000, the management prevented the entry of the workers and directed the workers
to sign a "Good Conduct Undertaking" before entering the factory. It had affixed a notice on the
main gate to make it clear that no worker would be permitted entry unless he signed the said
undertaking. On 17.10.2000, petitioner No. I wrote to the Labour Commissioner complaining him of
the illegal action of respondent No. 4 which also amounted to an unfair labour practice. Petitioner
No. 1 also asked the Labour Commissioner to immediately initiate proceedings so that the illegal
lock-out which was not in the interest of either the workmen or the management was lifted.
6. It is alleged thflt workers named Shri Chander Bhan and Shri Rajesh had been permitted to enter
the factory campus of respondent No. 4 and were detained since 12.10.2000 and on 18.10.2000
Bhan's dead-body was deposited at his residence by the management and Rajesh's dead-body was
recovered the same day from a nullah five kilometers from the factory campus of respondent No. 4.
The police has refused to register an FIR despite several requests. On October 18,2000,
petitionerNo. 1 wrotealetterto the management requesting them to discuss and resolve the impasse.
On October 23, 2000, petitionerNo. 1 wrote a letter to the Conciliation Officer requesting him to
intervene. Pursuant to the request of petitioner No. I vide its letter dated 18.10.2000 a meeting to
solve the issue was held on October 25, 2000 but no solution was found due to the adamant attitude
of the management-respondent No. 4.
7. PetitionerNo. 1 filed a suit in the court of Civil Judge (Senior Division), Gurgaon being suit No.
206 of 2000 with a prayer of permanent injunction restraining respondent No. 4 from insisting the
workers to sign a "Good Conduct Undertaking". The suit was filed because the Labour
Commissioner had refused to intervene and the petitioner-Union was in great distress. Vide order
dated 8.11.2000, the learned Civil Judge held that it had nojurisdict ion to try the suit since it was
essentially an industrial dispute. (This was iheprima facie finding given by him). However, inspite of
the finding regarding jurisdiction, the learned Judge proceeded to examine the matter on merit and
declined to grant temporary injunction as prayed for. Petitioner-Union filed an appeal against the
said order of learned Civil Judge, in the Court of District Judge, Gurgaon.. However, on 14.11.2000
both the pending suit and the appeal were withdrawn.
8. From October 11,2000 till date respondent No. 4 had terminated the services of about 84 workers
who had not signed the said undertaking. This writ petition was, therefore, filed with the above
mentioned prayers on 25.11.2000.
9. Respondents No. 4 and 5 have filed their written statement challenging the writ petition. In the
written statement, they have inter alia taken the following preliminary objection :
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

(i) that respondent No. 4 is not a Sate within the meaning of Article 12 of the Constitution of India
and, therefor, writ petition against it is not maintainable.
(ii) that the petitioners had earlier filed a suit forper-manent injunction in the court of Additional
Civil Judge (Senior Division), Gurgaon for restraining respondent No. 4 from forcing the workers to
sign the good conduct undertaking or any such like document before entering the premises. It is
further contended that the learned Civil Judge found that the strikeprimafacie appeared to;be illegal
and that the bond of good conduct did not change any condition of service of workmen and that the
undertaking was more in the form of an assurance to do the normal work with discipline which was
necessary. Learned Civil Judge had justified ihe insistence on execuiion of good conduct bond. It is
contended that by this petition, the petitioner No. 1 are claiming the same and similar reliefs which
they had sought from the Additional Civil Judge (Senior Division), Gur-gaon. Therefore, when the
application under order 39 rules 1 and 2 Civil Procedure Code (hereinafter referred to as the "Code")
was dismissed by the learned Additional Civil Judge, it was not open to petitioner No. 1 to file the
present writ petition when the suit was withdrawn without obtaining permission to file a fresh one
on the same cause of action.
(iii) In the endeavour to bring the reliefs which the petitioners are claiming against respondents No.
4 and 5 within the jurisdiction of this Court, the petitioners have joined reliefs against the official
respondent Nos. 1 to 3 and have tried to show that by doing so a writ petition can lie against
respondents No. 4 and 5.
10. On merit also, the allegations made in the petition are denied. It is inter alia contended that
during the "go slow" resorted by the workmen, not only there was a production loss but also the
workmen had raised slogans and held demonstrations in the factory premises. It is also contended
that at the instigation of the Union, a large number of workmen forced their entry into the factory
without any authorisation on 19.9.0200. They collected in huge numbers in front of the Mezzanine 1
and 2, held demonstrations and raised offensive and derogatory slogans. On 20.9.2000 the workers
in large number held demonstration and also damaged property. Not only the workers did not work
but they also stopped the contract labour from entering the factory on 21.9.2000 and 22.9.2000. On
26.9.2000 and 27.9.2000, the workmen reported for duty without wearing their uniform which
conduct of theirs not only constituted a serious misconduct but also is a security risk, as in the
absence of uniform any outsider with mischievous motives could also gain entry into the factory. In
order to ensure that no such unauthorised person entered into the factory the management directed
the security staff on duty to allow the entry of the employees only after checking and verifyingthe
identity cardof the employees. However, the workmen forced their entry i"10 the factory by pushing
the security guard on the gate, thereby exposing the plant and machinery to damage and sabotage.
On 28.9.2000, the workmen did report for duty in uniform but they had stickers "Inquilab
Zindabad" on their uniform. It is contended that because of the above activity of the workmen, in
order to see that the damage was not caused, the bond of'Good Conduct' is necessary. It is
contended in the written statement that because of the notice regarding the undertaking, the workmen are not prevented from joining the duty nor as the management demanding
from the workmen to sign any "Good Conduct Bond". It is contended that in terms of Ihe contract of
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

employment and the certified standing orders and the code of conduct agreed to vide settlement
dated 27.7.1987, the workmen are duty-bound to adhere to the norms of discipline and give normal
out-put. It is further contended that the certified Standing Orders which have the force of law,
clearly prohibit the employees from indulging in nefarious, illegal acts.
11. In pursuance to the notice dated 11.10.2000, about 1200 workmen had joined their duties after
signing the "Good Conduct Undertaking". However, the petitioner-Union is instigating the other
workmen not to sign the undertaking. It is further contended that the letter dated 18.9.2000 is not
actually notice of strike and it means that the line of action was yet to be decided as the petitioners
had indicated various options which include hunger strike, tool down strike, fast unto death and
total strike. It is contended that the letter being termed as notice of strike is an after-thought and is
not a strike notice as contemplated under the Standing Orders requiring the petitioners to give 14
days notice before striking work.
12. Regarding death of the two workmen, it is contended in the written statement that it is denied
that Shri Chander Bhan and Shri Rajesh had been detained in the factory from 12.10.2000. Shri
Chander Bhan was an old heart patient and unfortunately he died as a result of the heart attack
suffered by him while on duty and that petitioner No. 1 had exploited the death of Chander Bhan to
its advantage by raising all kinds of false accusations against the Managing Director accusing him of
committing murder. So far as Rajesh is concerned, it is contended that his body was recovered at a
distance of about 10 kilometres from the factory and the circumstances leading to his death are nol
known.
13. Amongst pleadings of the parties mentioned above, I have mentioned only those pleadings which
are relevant to the order regarding interim injunction.
14. Regarding the first objection Mr. Sarin, learned senior Counsel for respondent No. 4 has argued
that respondent No. 4 is not a State and, therefore, writ will not lie against it. He has contended that
the only prayer against respondents No. 4 and 5 is Ihe one which are prayers (e) and (f). They are
reproduced as under :(e) A writ of mandamus or any other appropriate writ or order or direction in the nature of a writ of
mandamus directing the respondent No. 4 and 5 to cease and desist from committing the said unfair
labour practice and to allow the workmen of respondent No. 4 to report for duty without insisting
that they should sign a good conduct bond may kindly be issued.
(f) Ad interim and exparte orders in terms of prayer

(e) may kindly be issued.

15. Mr. Sarin has argued that no other prayer is against respondents No. 4 and 5 and, therefor

16. The other prayers are qua the other respondents. Mr. Sarin had relied on a judgment of a
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

Division Bench of this court in which I was also a member. It is case of Ganesh Dutt and others v.
The Sfate of Hary-ana and others. In that case respondent No. 4 was Maruti Udyog Limited through
its Genera! Manager. The prayer in the said writ petition was for prohibiting Maruti Udyog Limited
from employing any other workmen without offering employment to them as they have already been
in continuous service of the Company for a period of one year and have alsq completed 240 days. It
was held in the said judgment that Maruti Udyog Limited is not an instrumentality of the State. The
Division Bench had relied on a judgment of the Delhi High Court in the case of P.B. Ghayalodv.
Maruti Udyog Limited and another, Civil Writ Petition No. 3~102 of 1990. It was observed by the
Delhi High Court in that case that the Maruti Udyog Limited is not an instrumentality of the
Government within the ambit of Article 12 ofthe Constitution of India and relied on the views ofthe
Kerala High Court in the case of K.M. Thomas v. Cochin Refineries Ltd, and others, AIR 1982 Kenila
248. It was observed by the Division Bench of this Court in the case of Ganesh Dutt (supra) that
against the order of the Delhi High Court an SUP was filed in the Supreme Court and their
Lordships of the Supreme Court vide order dated December 6, 1991 declined to interfere and
dismissed the SLP. Mr. Sarin argued that is now well established that Maruti Udyog Limited is not
an instrumentality ofthe State end, therefore, writ will not lie against it.
17. Mr. Sarin has also referred to the case of Sri Ramdas Motor Transport Ltd. v. TadiAdhlnarayana
Reddy and others, 1997(5) Supreme Court Cases 446. It is regarding alternative remedy available
under the Companies Act.
18. Mrs. IndraJaiSinghJearnedCounselforthepe-titioners contended that she does not say that
Maruli Udyog Limited is an instrumentality of the State. However, writ against Maruti Udyog
Limited is maintainable. She has relied on the case of U.P. State Cooperative Land Development
Bank Ltd. v. Chandra Blian Duhey and others, AIR 1999 SC 753:1999(1) SCT 593 (SC) (hereinafter
referred to as the case of "Chandra Bhan Dubey") in which it has been observed as under:
".....When the language of Article 226 is clear, we cannot put shackles on the High Court to limit
their jurisdiction by putting an interpretation on the words which would limit their jurisdiction.
When any citizen or person is wronged, the High Court will step in to protect him be that wrong be
done by the State, an instrumentality ofthe State, a company or a co-operative society or association
or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III ofthe Constitution or any other right which the law validly made
might confer upon him. But under Article 226 of the Constitution is so vast, this court has laid down
certain guidelines and self-imposed limitations have been put there subject to which High Courts
would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High
Court does not interfere when an equally efficacious alternative remedy is available or when there is
established procedure to remedy a wrong or enforce a right. A party may not be allowed to by pass
the normal channel of civil and criminal litigation. High Court does not act like a proverbial'bull in
china shop1 in the exercise of its jurisdiction under Article 226."
19. In the above said case, the Supreme Court ultimately held that the appellant in that case i.e. U.P.
State Co-operative Land Development Bank Ltd. was an authority controlled by the Slate
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Government and the service conditions ofthe employees ofthe appellant particularly with regard to
disciplinary proceedings against them arc statutory in nature and thus writ petition was
maintainable against the appellant. It has observed that to the above extent, they agreed with the
High Court. However, disciplinary proceedings were held against the respondents in accordance
with law with due observance ofthe rules of natural justice and the judgment ofthe High Court was,
therefore, riot correct to that extent and hence the appeals were allowed.
20. The second objection raised by Mr. Sarin is that once the suit being withdrawn without
permission to file fresh suit on the same cause of action, fresh suit is barred and even the writ
petition is barred. He has argued that Order 23 Rule 1 of the Code then comes into play and if the
petitioners wanted to have their right open, they could have asked for permission to file the fresh
siiil on the same cause of action and if such application was given, respondent No. 4 could have had
an opportunity of raising objection to such an application and therefore, withdrawal ofthe suit has
barred the fresh suit and even this writ petition. Mrs. Indra Jai Singh has argued that the suit was
withoutjurisdiction and, therefore, does not bar this writ petition. Mr. Sarin pointed out from the
order of (he civil Court that the suit is not held to be without jurisdiction and only while deciding the
question of granting ad interim injunction it is only a primafacie opinion expressed by learned Civil
Judge that it had no jurisdiction and suit is not dismissed because of want of jurisdiction. The copy
of the judgment ofthe Civil Judge is at annexure R/2. In para 7 of the said judgment, the Civil Judge
has observed as under:
"The dispute in hand in the present case between the parties is, thus\primafacie, essentially an
industrial dispute within the ambit and scope of section 2(k) of Ihe Industrial Disputes Act, 1947
and the Civil Court \\-QM\tiprimafacie, have no jurisdiction to try this suit."
21. Mr. Sarin has relied on the case of Snrgtija Transport Service v. State Transport Appellate Trihunal, Gwalior and others, AIR 1987S.C. SS. In that case it has been held by the Supreme Court that
while the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ
petition may not bar oilier remedies I ike a suit or a petition under Article 32 since such withdrawal
does not amount to resjttdi-cata, the remedy under Articles 226 should be deemed to have been
abandoned by the petitioner in respect of the cause of action relied on in the writ.
22. Mr. Sarin, learned Counsel for respondent No. 4 has cited the case of Teja Singlt v. Union
Territory of Chandigarh, 1982 Punjab Law Reporter 160. Il is a judgment of a Full Bench of this
Court. In that case it has been held that when a writ petition is dismissed after contest by passing a
speaking order, then such decision would operate as res judit-'ata in any other proceeding such as
suit or petition under Articles 32 of the Constitution.
23. Mr. Sarin has also cited the case of S.K. Miltalv. The Slate of Haryana and others, 1997(1)
Current Law Journal 581:1996(4) SCT219 (P&H)(DB). It is a judgment of a Division Bench of this
court wherein it has been held that once a person initiates proceedings in Civil Court, subsequently
he cannot take the plea that the remedy by way of civil suit is not effective.

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24. Mr. Sarin further argued that the relief claimed against respondent No. 4 is under Clause (e) of
the relief clause of the petition and if this relief can not be granted, the interim relief also cannot be
granted. He has relied on (be case of Surjii and others v. Copland others, 1970 Current Lit\v Journal
IS8. In para 6 of the judgment, it has been observed that in a suit brought for a declaration that the
plaintiff had a right to remain in possession of the suit lands as long as he performed
"archakathvam" service and that he could not be evicted from those lands, no injunction would be
grantee! to the plaintiff to restrain the defendants from taking proceedings to recover possession of
the lands in dispute.
25. Mrs. Indra Jai Singh relied on the case ofRajas-tliaii State Road Transport Corporation and
another v. Krishna Kant ami others, 1995(5) Supreme Court Cases 75 : 1994(1) SCT 23 (SC) in which
it is held that the dispute involving recognition, observance or enforcement of rights and obligations
created under the Act or its sister enactments, if amounts to industrial dispute, shall be adjudicated
by the forum created under the Act only. Rely ing en this judgment, she argued that the Civil Court
had no jurisdiction and, therefore, the writ petition was not barred by withdrawal of the Civil Court.
Mr. Sarin, however, relied on the observations in the very judgment that when industrial dispute
involves relief based on general law, the Civil Courts have alternate jurisdiction. He also laid stress
on the observations in the case [hat remedies provided under the Act cannot be said to be no!
equally effective. In the present case it can be seen that before the question of jurisdiction could be
finally decided, the suit was withdrawn.
26. I shall take up all the preliminary objections together. So far as the question of amenabil ity to
the writ petition is concerned, as mentioned above, contrary judgments have been cited. The case of
Ganesh Dull (supra) and other cases referred to therein have decided on the question regarding
amenability to the writ jurisdiction, respondent being not an instrumentality of the State. As
mentioned above, counsel for the petitioners has made it clear that she does not say that Maruti
Udyog Limited is an instrumentality of the State. However, according to her this writ petition is
maintainable. In the case of Chandra Bhan Dubey (supra) cited by her, it is made clear that the High
Court will step in to undo a wrong and the power conferred under Article 226 of the Constitution is
vast. However, it has also been observed in the said case that the court has laid down certain
guidelines and self-imposed limitations subject to which High Courts would exercise jurisdiction.
Though those limitations and guidelines cannot be mandatory in all circumstances, it has been held
that the High Court does not interfere when an equally efficacious alternative remedy is available or
when there is established procedure to remedy a wrong or enforce aright. It is also observed that a
party may not be allowed to bypass ihe normal channel of civil and criminal litigation. It may also be
noted that in the said case the U.P. State Co-operative Land Development Bank was held to be an
authority controlled by the State Government and the service conditions of the employees of the
appellant particularly with regard to disciplinary proceedings against them being statutory in nature
and thus writ petition was held maintainable against it. It was further held by the Supreme Court
that the disciplinary proceedings were held against the respondents in accordance with law with due
observance of the rules of natural justice and. therefore, the judgment of the High Court was not
correct to that extent and hence ihe appeals were allowed. Therefore, it is clear that the guidelines
cannot be held to be mandatory in all circumstances. In the case of Sri Ramdas Motor Transport
Ltd. (supra) it was observed that instead of moving the authorities prescribed under the Companies
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Act the first respondent had chosen to resort to the writ jurisdiction of the High Court for a direction
to have the affairs of the company investigated by the CBI. It was held that a shareholder cannot be
allowed to bypass the express provision of the Companies Act and move the High Court under
Article 226 of the Constitution and that he has very effective remedies under the Companies Act for
prevention of oppression and mismanagement and when such remedies are available, the Court
should not readily entertain a petition under Article 226 of the Constitution.
27. Moreover, the time when the petitioners have come for seeking the remedy under Article 226 of
the Constitution is also important. They have come after getting an adverse order in application for
injunction from the Civil Court and after withdrawal of the suit without permission to file a fresh
one. When alternative remedy is available in this case,and it is not the case that the petilioners have
rushed to this court at ihe first instance, I find that the petitioners could not have invoked the writ
jurisdiction of this Court. I shall deal on Ihe effect of trie withdrawal of the suit in the subsequent
part of this judgment. However, the effect of the previous steps taken by the petitioners goes to show
that there can be possibility of Bench- hunting. Learned counsel for the petitioners argued that
when the civil court held that it had no jurisdiction, it should not have gone into merit of the case.
However, it can be found from the order of the civil Court that the findings of the civil Court are only
prima facie findings and Ihe civil Court has not given the finding regarding jurisdiction and,
therefore, when the question of injunction was to be decided, Ihe civil Court cannot be blamed for
having entered into the discussion on the merits of ihe case as well. Therefore, in addition to the
point of entertaining of the writ petition under article 226 of the Constitution against Maruti Udyog
Limited, the conduct of the petitioners has also to be taken into account and after having laken the
same into account, ihe guide-lines and self-imposed limitations, as men-lioned by the Supreme
Court in the case of Chandra Bhan Dubey (supra), cannot be over-looked. Therefore, I find that the
writ pelition against respondents No. 4 and 5 will not lie for the prayer the petitioners are making
against it. II may also be noted that there are five respondents in all and prayers at serial Nos. (e)
and (f) are restricted to respondents No. 4 and 5 only. The prayer is separable from the prayer
against other respondents and considering all the above aspects, it is found that the other
respondenls have been included with prayer against them in this writ petition just to make the writ
petition maintainable against respondents No. 4 and 5.
28. The case of Sarguja Transport Service (supra) was the case in which the earlier writ petit ion by
the petitioner was withdrawn. It was a simple order passed:
"Shri Y.S. Dharmadhikari, learned Counsel for the petitioner seeks permission to withdraw the
petition. Heispermittedtodoso. Thepetitionisdis-missed as withdrawn."
29. In lhat case later on the petitioner again filed another writ petilion before the High Court and
when it came up for hearing, it was held that no second writ petition could lie against the same order
in view of the withdrawal of the earlier writ petition and that earlier writ pelilion was not withdrawn
with permission to file a fresh petition. These observations were made in addition to Ihe
observations on the merit of the case. The Supreme Court further observed in that case that the
provisions of Order 23 Rule 1 of Ihe Code should be extended in the interest of administration of
justice to cases of withdrawal of writ petition also, not on the ground ofresjudicata but on the
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ground of public policy. It is also observed that it would also discourage the litigant from indulging
in Bench-hunting taclics. It is further observed that in any event there is no justifiable reason in
such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under
Article 226 of the Constitution once again and while the withdrawal of a writ petilion filed in High
Court without permission to file afresh writ petition may not bar other remedies like a suit or a
petition under Article 32 of the Constitution since such withdrawal does not amount to resjudicata,
the remedy under Article 226 of the Constitution should be deemed to have been abandoned by (he
petitioner in respect of the same cause of action. Counsel for the petilioners on the other hand
argued that when a writ petilion is withdrawn, the second writ petition may not lie but when a suit is
withdrawn, the High Court's power to entertain the writ petition cannot be said to be barred. I do
not agree with ihe submission of learned Counsel for ihe petitioners. The crux of the matter is that a
writ petition is barred in such circumstances (though the other remedies are kept open). It does not
mean that when the suit is withdrawn, a writ petition will lie though the second suit will not lie.
Moreover, the Full Bench judgment of this court in the case of Teja Singh (supra) also laid down that
provisions of Order 23 Rule 1 of the code would apply to the writ proceedings and that a petition
which has simply been got dismissed as withdrawn would be a bar to the filing of a second petition
on the same facts and in respect of the same cause of action, though it is held that Ihe petition
dismissed only on the ground of laches or availability of an alternative remedy would not operate as
resjudicata.
30. In the case of S.K. Mittal (supra), a Division Bench of this court has held that once a person
initiales proceedings in Civil Court, subsequently he cannot take the plea that the remedy by way of
a civil suit is not an effective one. It was further held that it would be proper exercise of discretion
not to entertain a petition by a person who had approached the civil Court and had subsequently
withdrawn the suit. It has been further held therein that if a party approaching the High Court for
issue of a writ can get similar relief by filing appeal, revision or civil suit, the extraordinary
jurisdiction should not be exercised by the High Conn. It is also observed therein lhat the High
Court will not convert itself into a substitute of ihe civil Courts and various statutory adjudicating
bodies and in a given case a person aggrieved by the action of the State or its agencies may avail the
remedy of civil suit thinking that he will be able to get effective relief from the competent civil Court.
Such person may also apply for grant of temporary injunction for proteclion of his rights. Once this
course is adopted, it is not permissible for that person to give up the remedy of civil suit and
approach the High Court merely because at a subsequent point of time he thinks that the
proceedings in the civil Court will last longer than the period which would be consumed in the
decision of a writ filed for seeking similar relief. It is further held that once a person has chosen to
seek remedy in a civil Court, he cannot turn around subsequently and say that the remedy by way of
civil suit is not effective. It is further observed that at times an attempt is made to seek order of
temporary injunction from the High Court after the civil Court has declined similar relief and that in
some cases where order of temporary injunction passed on an application filed along with the civil
suit, the plaintiff feels lhat such an order will not be sustained by the appellate Court and, therefore,
he/she seeks withdrawal of ihe suit and then files writ in the High Court. It was observed that such a
practice cannot in any manner be commended and rather it deserves to be depreciated (deprecated
?) because it gives rise to an impression to the litigating public that if one cannot get temporary
injunction from a civil Court in an application filed under order 39 Rules 1 and 2 read with section
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151 C.P.C., then an attempt could be made to get such relief from the High Court in exercise of its
jurisdiction under Article 226 of the Constitution. It is further observed in it that the High Court will
not exercise its jurisdiction under Article 226 of the Constitution in such a case.
31. Counsel for the petitioners has relied on the judgment of Olga Tellis and others v. Bombay
Municipal Corporation anil others, AIR 1986 Supreme Court ISO- She has relied on para 27 of that
judgment. The facts of that case are that a writ petition was filed on the original side of the Bombay
High Court by and on behalf of ihe pavement dwellers claiming reliefs similar to those claimed in
Ihe batch of writ petitions. The learned Single Judge granted an ad interim injunction restraining
Ihe respondents from demolishing (he huls and from evicting the pavement dwellers. When the
petition came up for hewing, counsel for the petitioners made a statement in answer to a query from
the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public
roads. Consequently, a written undertaking was given by the petitioners agreeing, inter alia, to
vacate the huts on or before October 15, 1981 and not to obstruct the public authorities from
demolishing them. In view of this undertaking, the Stale counsel responded to the petitioner's
undertaking by giving an undertaking on behalf of the State Government lhat until October 15, 1981,
no pavement dweller will be removed out of the city against his wish. On the basis of these
undertakings, the learned Judge disposed of the writ petition without passing any further orders.
The contention of the Bombay Municipal Corporation in the subsequent petitions was that since the
pavement dwellers had conceded in the High Court that they didnot claim any fundamental right to
pul up huts on pavements or public roads and since they had given an undertaking to the High
Court that they will not obstruct the demolition of the huts after October 15, 1981, they were
estopped from contending in that court that the huts constructed by them on the pavements could
not be demolished because of their right lo livelihood which is comprehended within the
fundamental right to life guaranteed by Articlc2t of the Constitution. It has been held by Ihe
Supreme Court in that case that inspite of the undertaking given, the petitioners were entitled to
assert that any such action on the part of public authorities will be in violation of their fundamental
rights and that how far Ihe argument regarding the existence and scope of the right claimed by the
petitioners is well founded was another matter. According lo counsel for the petitioners, (he
fundamental rights of the workmen are being affected and, therefore, the withdrawal of ihe suit
cannot estop them from filing the writ petition.
32. The case of Olaga Tellis (supra) was on a different footing. It was regarding the undertaking
given at one slage in one writ petition which was held to be not binding in the subsequent writ
petition. In view of the above mentioned facts of the present case, these principles cannot be applied
to this case.
33. This then takes me again to the third objection raised by learned Counsel for respondent No. 4
i.e. the two reliefs which are separate in nalure are joined together because in the relief clause,
except those in relief clauses (3) and (f), the writ might lie against respondents No. 1 to 3 and when
writ could not lie against respondent No. 4, the petitioners have tried to mix up these reliefs and
seek the relief which cannot be a subject-matter of a writ against respondent No. 4 and a relief which
was once abandoned is tried to be revived by joining il with other reliefs. It is found that the relief
Clauses (e) and (0 are against respondents No. 4 and 5 only. The other reliefs claimed are mainly
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

against respondents No. 1 to 3. However, in the present case il is clear lhal because injunction was
not granted in the Civil Court this device has been adopted to bring the case within ihe writ
jurisdiction of this court for the grant of the relief which was declined by Ihe civil Court. From this
also it can be found that the petitioners should not be granted relief of injunction as prayed for. At
this stage it may again be mentioned that the suit was withdrawn without a prayer under Order 23
of the Code for permission to file fresh suit. Suit was not dismissed on the point of jurisdiction. The
appeal filed over the order of the learned Civil Judge was also withdrawn and in such a case it will
neither be proper nor will it be prudent to grant injunction as prayed for.
34. On merit, it was argued by learned Counsel for the petitioners that if there is a legal strike, the
condi-(ions as mentioned in the undertaking cannot be imposed for joining duly. She has relied on
seclion 25-T of the Act. Il mentions (hat no employer or workmen or a trade union shall commit any
unfair labour practice. Section 2(ra) defines "unfair labour practice" to mean any of the practice
specified in the Fifth Schedule. Item No. 8 in the Fifth Schedule is as under:
"Toinsisiupon individual workmen, who are on a legal strike to sign a good conduct bond, as a
precondition to allowing (hem to resume work."
35. According to learned Counsel for the petitioner, if the workmen are on legal strike, they cannot
be, in view of the above provision, made to sign a good conduct bond as a pre-condition for allowing
them to resume work. Mr. Sarin argued that whether the strike is legal or not is a matter of fact to be
decided by the Labour Court for which evidence is required and that cannot be gone into ii 'he writ
petition.
36. The undertaking which respondent No. 4 requires the petitioners to sign is as under:

"Maruti Udyog Limited

(Good Conduct Undertaking)

I _________ son of

_____________________Staff

No. _________do hereby givelhisdecla-ralion of good conduct undertaking binding myself that
upon joining my duties, I shall neither indulge in go slow nor resort to (ool down or stay in strike or
otherwise indulge in any other activities in breach of the Certified Standing Orders which has the
effect of adversely affecting the production and discipline. I further undertake to give normal output
and work in disciplined manner.

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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

I fully understand thai acting in breach of the good conduct undertaking as aforesaid shall constitute
ross misconduct on my part and as such if I am found indulging in any activity in breach of this
declaration of Good Conduct Undertaking, the management shall have legal right to take
appropriate legal action against me.
Date ________,
Signature
_____________ (Good Conduct Undertaking) Name __________________________
Deptt. _____________________ Staff No. __________________ Level
_____________________Signature of Management Representative _____ This form will be
accepted at all MUL gates."
37. Mr. Sarin argued that the letter dated 1S.9.2000 annexure P/3 cannot be interpreted as notice of
strike. He has argued that the line of action was yet to be decided and (he petitioners had indicated
various actions which included hunger strike, tool-down strike, fast unto death and total strike etc.
and that the letter being termed as a notice is an after-thought and is not a strike notice. It is
contended that the Standing Orders require the petitioner-Union to give 14 days notice before going
on strike. In the written statement, respondents No. 4 and 5 have reproduced the last paragraph of
the notice of strike date 11.4.1995 which is as under :"If the management failed to accede to the demand of the employees before 24.4.1995, the Working
Committee of MUEU has resolved to go for strike w.e.f. 25.4.1995. This notice is in accordance with
ihe provisions of the Standing Orders for workmen in MUL and as per the provisions of the
Industrial Disputes Act, 1947."
38. Learned counsel for the respondent No. 4 argued that no such dite from which the strike is to
start has been mentioned in letter annexure P/3 and, therefore, it cannot be treated as notice of
strike. He argued that the management only wants to ascenain that no untoward incident takes
place in the premises and the workers are not debarred from entering into the factory premises and
that the undertaking is required to see that no untoward incident happens. He further argued that
the so-called notice of strike is against the Standing Orders, which were observed by the workmen in
the earlier notice of 11.4-1995.
39. Learned counsel for the petitioners further argued that Section 23 of the Act will be the section
applicable to this case and under this section, no notice is required for going on strike. She further
states that no conciliation proceedings are pending and 14 days no-lice is given and, therefore, strike
is not illegal. She further argued that from 18.9.2000 to 13.10.2000 the workers were not on strike.
Moreover according to her there is a lock-out by the management.
40. Learned counsel forthe petitioners hasalso argued regarding the necessity of strike etc. She has
cited the case of B.R. Singh anil others etc. etc. v. Union of India and others, AIR (sic) Supreme
Court I. She has relied on para 16 of the judgment. The portion relied upon by her is as under :".....Therefore, trade unions with sufficient membership strength are able to bargain more effectively
witn the managements. This bargaining power would be considerably reduced if it is not permitted
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

to demonstrate. Strike in a given situation is only a form of demonstration. There are different
modes of demonstrations e.g. go-slow, sit in, work-to-rule absenteeism etc7 and strike is one such
mode of demonstration by workers for their rights. The right to demonstrate and. therefore, the
right to strike is an important weapon in the armoury of the workers. This right has been recognised
by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it
is recognised as a mode of redress for resolving the grievances of workers. But the right (o strike is
not absolute under our industrial jurisprudence and restrictions have been placed on it."
41. Learned counsel for the petitioners has referred to the case of Vamait Marat)' G/tarat and others
v. M. P. Apie and others, 1989(1) LLJ134 (Bombay). It has been held therein that when after the
LabourCourt declared Ihe strike to be illegal, the employees wanted to return to work. The employer
insisting on each workman giving a written undertaking. Some employees refused to give such as
undertaking. The undertaking demanded of workers insisted on the workers making two
confessions (i) that the strike was illegal, and (ii) that after entering the factory they would not
damage the property. By making the first confession the employee would have been prevented from
agitating about the correctness of the finding of the Labour Court in the earlier proceedings and the
insistence on the second part of the undertaking was also objectionable and if there was material on
record, may be on the basis of the present law, the employer may be justified in asking for an
undertaking of this type but in the instant case, there was no material at all in the record. It has been
held that the refusal of the respondent to give work to the petitioners without any undertaking
would amount to a lock-out which, not being in accordance with law, would le an iltegal lock-out.
However, in the present case there is no confession asked for. There is also allegation of violence
which cannot be decided in this writ petition as it requires evidence to be led and appreciated.
42. Learned counsel for the petitioners has also relied on the case of Vaman Maruty Gharal and
others v. M.S. Apte and others, 1995(70) F.L.R. 30. In the said case, it has been held by the Bombay
High Court that the insistence by company on admission by workmen that the strike was illegal as a
condition precedent, to their being allowed to resume their duty was held to be illegal and improper.
In the present case, no such admissioi, is asked for.
43 Learned counsel forthe petitioners has referred toannexure R/7 dated 11.10.2000 which is a
notice by the management. She has relied on para 11 ofthesame wherein it is mentioned that the
management merely wants the workmen to give an undertaking that they shall, upon joining their
duties, give normal output and adhere to the norms of discipline. She has relied on the case of The
Statesman Ltd. v. Their Workmen, AIR 1976 Supreme Court 758. She lias read over paras 15 and 16
of the judgment, l! was held therein that going by Ihe Tribunal's reading of (he situation there was a
strike that day. The pendency of certain types of proceedings before a Tribunal stamp a strike or
lock-out with illegality and while section 23 prohibits strikes and lock-outs when proceedings
mentioned there are under way, section 24(3) absolves a lock-out of illegality if it is caused by an
illegal strike. It has been further observed thai there surely was a pending industrial dispute when
the Unions sprang the strike. Being, therefore, illegal, the lock-out that followed became a legal,
defensive measure. However, it has been held that the management cannot behave unreasonably
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

merely because the tock-out is born lawfully. If by subsequent conduct, imaginatively interpreted,
the Unions have shown readiness to resume work peacefully, the refusal to re-start the industry is
not right and the initial legitimacy of the lock-out loses its virtue by this blemished sequel. It has
been further held that "in this hungry world the weaker many cannot afford the luxury of tinery in
speech which the happier few can afford." The learned Counsel has argued that the Union is ready to
resume work and there was stoppage of work for two hours a day from 2.10.2000 to 12.10.2000. She
has referred to para 6.17 of the written statement on page 237 of the paper book which shows thai as
to how the tool-down strike on 3-10.2000 was. It is as under:
6.17 effeclive 3.10.2000 the workmen have also resorted to tool-down strike, the details of which arc
given as below :3.10,2000
-2 hours in "A" and General shift 4.10.2000
-2 hours in "A", "B"
and general shift 5.10.1000
-4 hours in "A', shift and 2 hours each in general and 'B' shifts.
6.10.2000
-Total tool down strike in 'A' and '&' shifts and 2 tours in General shift 9.10.2000
-2 hours in 'A' 'B' and General shift.
10.10.2000
-2 hours in 'A' 'B' and General shift.
11.10.2000
-2 hours in 'A' 'B' and General shift.
43. Learned counsel for the petitioners has referred to annexure dated 12.10.2000 in which the
petitioner-Union has requested the management to allow the workers to join duty. She has argued
that there was no notice of lock-out but in law there is a lock-out when the workers are not allowed
to work without undertak-ing. She has also argued that the lock-out can be a partial one in view of
the section 2(1) of the Act. She has relied on the case of Harish Chander and others v. Kurukshetra
University, Kurtikshetra and another, 1989(2) RecentServices Judgments 367. It is a judgment of
the Single Judge of this Court in which it has been held that the grant of service benefit to some of
the workmen on account of not going on trike and on their undertaking not to go on strike in future
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

and if they would, the benefit would be withdrawn, amounts to unfair labour practice. However, in
the present case, it is not a question of benefit that has to be given on not going on strike and the
undertaking is not for the same and, therefore, this judgment does not help the petitioners.
45. Learned counsel for Ihe petitioners argued that it is only because respondents No, 1 to 3 have
failed to do their duty, the petilioners have come to this court. She has referred to a statement made
by Mr. Manohar Joshi, Hon'ble Minister of Heavy Industries and Public Enterprises on 29.11.2000.
A copy of the same has been shown by her. It has been mentioned in his statement as under :"However, Government did not consider it appropriate to insist that each worker executes a Good
Conduct Undertaking. Such an undertaking is not in consonance with the spirit of collective
bargaining. Government had therefore proposed that unions may furnish an assurance to the
management that the employees will abide by the extant Standing Orders of the Company."
46. Learned counsel for the petitioners argued that the workers are ready to give the undertaking as
directed by the Hon'ble Minister. This suggestion is not accepted by the counsel for respondent No.
4.
47. Mr. Sarin argued that the disputed questions cannot be gone into in this writ petition and the
authority under the Industrial Disputes Act is the proper authority.
48. Mr. Sarin has referred to the case of Glaxo Labo ratories Employees Union and M/s. Glaxo India
Limited, 1996(3) Labour Law Reporter 266 : 1996(4) SCT 5I4 (Gujarat). In that case the
undertaking was sought for in the following form :
"I___________________Employee No. ___________hereby seek permission to enter the
factory premises as I am not on strike and I undertake that during my shift I will not go on strike. 1
will ensure normal output by per forming my assigned duties and I will maintain discipline. I accept
lhat in case I fail to abide by my above undertaking, I will render myself liable to action being taken
against me.
Signature"
48. It was held in that case that on scrutinizing of this undertaking, it was clear that there is no
change of any condition of service of the workmen. The undertaking was more in form of an
assurance to do the normal work with discipline which was necessary having regard to the prevalent
situation. It is also observed that it is not a condition of service of a workman to force his entry in
the factory premises, when on strike and the workmen enter the premises because of the implied
licence and such permission of the employer to enter the factory premises cannot be described as
change in conditions of service within the meaning of section 9A of the Act. In that case a settlement
was arrived at between the parties which ended on June 30, 1990 when new demands were raised
by the Union including demand for 2 days weekly off know as 6 x 2 shift system or rota system.
There were negotiations between the parties on this issue, but it could not be resolved. In the
meeting of the General Body of the Union held on September 27, 1991, it was resolved to resort to
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Maruti Udyog Employees Union ... vs State Of Haryana on 15 December, 2000

agitation including indefinite strike to press for their demand for 6 x 2 shift system. This stand was
reiterated by the Union in their letter dated October 15, 1991. On Novembers, 1991 the
respondent-Company wrote a letter to the Union drawing its attention to the deterioration in the
discipline of the workmen and pointing out that their insistence on flash strikes will adversely affect
the operations of the company. According to the Company, the irresponsible conduct of the
workmen created safely hazards to the plaint and personnel. According to the company, from
October 8, 1991 to December 7, 1991, there were 14 instances of flash strike, go-slow, slogan
shouting etc. on different dates. The Company approached the civil Court to obtain orders against
the workmen for restraining them from using force executing threats and using abusive language.
Ultimately, on December 8, 1991 the respondent-Company sought an undertaking from each
workman at the beginning of each shift to the effect that during the shift, the workmen would not go
on strike and will ensure normal output by performing the assigned duties and will maintain
discipline. The workmen refused to sign the said undertaking. On January 11,1992 the Union wrote
a letter to the Com-parv seeking withdrawal of the requirement of undertaking. Ultimately on April
7. 1991, the Union agreed to drop its demand for 6 x 2 shift system and consider the Company's offer
for subsidised transport. The demand for 6 x 2 system was dropped by the Union on April 23, 1992.
It was agreed to withdraw the agitation and gave an undertaking on behalf of the workmen that they
would resume work and will not re-scrt to slrike and further that they will ensure normal out-(sic)
and maintain discipline. Thus with effect from April.24,1992, the work was resumed. According to
the company, the workmen were on illegal and unjustified strike from December 9, 1991 to
December 23, 1992 but according to the Union, this was an illegal lock-out by the Company.
50. Mr. Sarin also referred to the judgment in the case of Sundaram Industries Employees Union v.
Management of Sundaram Industries Ltd., 2000(2) LLJ (sic). It is held in that case that the
respondent-management was charged with having refused to employ the workmen until they signed
a bond of good conduct and declaration that the impugned action of the management was illegal.
The High Court dismissed the petition, observing that the demand of the management could not be
tested unless the factual situation was established in proper forum. It was held that it was neither a
case of temporary closure of business, nor of suspension of work and whether the impugned refusal
of the respondent-management would or would not amount to lock-out had to be decided in a
proper forum.
51. Mr. Sarin has also argued if a relief cannot be granted in the final decision of the case it cannot
be granted at the initial stage also. He has relied on the case of Bank of Maharashtra v. Race
Shipping and Transport Co. Pvt. Limited and another, JT 1995(3) S.C. 175. It has been held therein
that time and again the court has deprecated the practice of granting interim orders which
practically give the principal relief sought in the petition for no better reason than that a prima facie
case has been made out, without being concerned about the balance of convenience.
52. Mr. Sarin has cited the case of P.R. Sinha and others v. Inder Krishan Raina and others, 1996(1)
Supreme Court Cases 681. It has been held therein that the High Court should not pass interim
order, the nature of which is to grant a relief which can be granted only at the final disposal of such a
writ petition. In that case the writ petition filed by respondent complaining non-supply of coat by
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appellant in spite of deposit of price of coal. The appellant has contended that Income Tax Deptt.
had attached the money deposited by respondent. In the High Court while admitting the petition
issued ex parte ad interim order directing the appellant to release, in the meantime, the coal for
which it received payment from respondent. It was held in that case that the High Court erred in
issuing such an order.
53. The petitioner who seeks injunction has to show the following three points to be in his favour :(i) that he has a prima facie case;
(ii) that the balance of convenience is in his favour: and
(iii) that irreparable loss will be caused to him if such an injunction is not granted.
54. In this case, the petitioners cannot be said to have prima facie case in view or the discussion
made above. Balance of convenience also cannot be said to be in their favour. The loss, if injunction
is not granted, cannot be said to be an irreparable one. What respondent No. 4 is wanting is to sign
and "undertaking" in order to see that no untoward incident takes place. When there is allegation of
violation in the factory premises it cannot be over-looked. If the petitioners are not on strike, then
they can be allowed to enter the factory but at the same time there should not be any agitation,
speeches or any violence in the factory premises. Moreover, if the workmen are on strike, the
question to enter the factory does not arise. Mr. Sarin has argued that whether the strike is legal or
not will have to be seen after consideration of the evidence which cannot be done by the writ court.
He has argued that the notice of strike as staled by the petitioners, is not a notice of strike at all. On
the contrary, according to him notice indicates that the nature of the strike or mode of strike is still
to be decided and, therefore, it cannot be said to be notice of strike. I find great force in this
argument. This being so, prima facie it cannot be said that it was a notice of strike.
55. This case can also be seen from another angle so far as interim order is concerned. What
respondent No. 4 is wanting is the "undertaking" mentioned above. The petitioners are ready to give
undertaking as mentioned in the letter of Hon'ble Minister of Heavy Industries and Public
Enterprises dated 29.11,2000. If the undertaking can be given as suggested by Hon'ble Minister, the
undertaking as asked by respondent No. 4 also can be given at this interim stage. Of course, even if
the undertaking as wanted by respondent No. 4 is given at this stage, it shall be deemed to be an
interim arrangement subject to the final decision of this writ petition and if the petitioners
succeeded, the undertaking can be said to be non-existent.
56. In view of the above, reasons, 1 do not find it proper to grant ad inter injunction as prayed for.
Accordingly, the prayer for interim relief is rejected.
57. Order accordingly.

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