Bombay High Court
Municipal Corporation Of vs Municipal Mazdoor Union on 8 August, 2012
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 5088 OF 2012
1 Municipal Corporation of
Greater Mumbai, having
its office at Mahapalika Marg,
Opp. C.S.T Station,
Fort, Mumbai-400 001
2 The Municipal Commissioner,
Municipal Corporation of
Greater Mumbai, having
its office at Mahapalika Marg,
Opp. C.S.T Station,
Fort, Mumbai-400 001 ......Petitioners.
(Original Respondents)
Vs.
Municipal Mazdoor Union, Mumbai
Bal Dandavate Smruti, 237-239,
N.M. Joshi Marg, Opp. Bawla Masjid,
Mumbai-400 012. ......Respondents.
(Original Complainants)
Mr. A.V. Bukhari, a/w Mr. S.S. Kakale, Mr. R.N. Shah, Special Counsel
and Mr. Burhan V. Bukhari, M.M. Malvankar, Ms. M.R. Bhoir with Ms.
U.H. Deshpande for the Petitioners.
Mr. S.K. Talsania, Senior Counsel i/by Ms. Neeta P. Karnik with Ms.
Shraddha Dhamale with Ms. Prinyanka Dable and Ms. Hemali
Sakhare for the Respondents.
CORAM :- ANOOP V. MOHTA, J.
JUDGMENT RESERVED ON :- 3 AUGUST 2012.
JUDGMENT PRONOUNCED ON :- 8 AUGUST 2012.
ORAL JUDGMENT:-
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The litigation background-
Petitioner No.1, Municipal Corporation of Greater Mumbai (for short, "Corporation") is a statutory authority established under the provisions of the Mumbai Municipal Corporation Act, 1888 (for short, the MMC Act). The Petitioners are under various obligations to discharge their duties and functions, through its employees/workers.
Petitioner No.1 is a "Local Body"/ "Authority"/"Employer" to provide public services, all sorts of Civil amenities and for smooth and proper function and to maintain all essential services/facilities, they appoint various types of employees for the respective Departments. Both are governed by their employment contract and related laws. The Petitioner-Corporation, for these activities, has more than 145000 employees, including permanent, seasonal and daily employees, excluding part timers. It has more than 1000 designations and more than 50 and odd related pay-scale grading wages and related benefits.
2 Respondent No.1 (Municipal Mazdoor Union) (for short, "MMU") is one of the leading recognized Union among the other 36 unions of the employees of the Corporation. The Respondent's Union ::: Downloaded on - 09/06/2013 18:57:25 ::: 3 wp5088.12final-13.8.12.sxw ssm along with other affiliated unions consists of more than 60000 members/employees. Their total percentage of members is more than 70% of the employees. There are other unions having such membership in minority. There is no serious dispute about this.
3 From time to time, the Respondents union along with other unions have agreed/signed several settlements/agreements, Memorandum of Understanding (for short, "MOU"), for periodic revision in wages, allowances, leave facilities and other terms and conditions of employment with Petitioners through its officials for more than 5 decades.
4 The Respondents-Complainants have filed complaint (ULP) No. 326 of 2011 dated 18 October 2011, in the Industrial Court, at Mumbai, along with the Application for interim reliefs, against the Petitioners under Section 28 read with item Nos. 5 and 9 of Schedule-
IV of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, MRTU & PULP Act).
5 It is relevant to note that on that day the following complaints have been pending before the same Industrial Court, as alleged, but ::: Downloaded on - 09/06/2013 18:57:25 ::: 4 wp5088.12final-13.8.12.sxw ssm not connected with the action revolving around circular dated 15 October 2011, issued by the Petitioners. Those complaints for and against the parties are Complaint Nos. 281 of 2011, 285 of 2011, 287 of 2011, 296 of 2011, 302 of 2011 and 311 of 2011.
6 The Petitioners have challenged final order dated 17 April 2012 passed by the Industrial Court, in complaint (ULP) No. 326 of 2011.
The operative part of which is as under:-
":-O R D E R:-
1 The complaint filed by the complainant is hereby partly allowed.
2 It is hereby declared that by denying ex-gratia payment to one class of employees on the ground that they have participated in the strike on 19/9/11 & 20/9/11, the respondents have committed unfair labour practice under item-5 & 9 of MRTU & PULP Act.
3 The respondents are directed to cease and desist from the proved unfair labour practice and to take affirmative action by making payment of Rs.11000/- towards ex-gratia as per circular dtd.
15/10/11 to the employees with 12% interest from the date the amount has been deducted from their salary till the date of actual payment to these said employees. 30 days time from the date of receipt of this order is hereby granted to the respondents to comply with the order passed by this court.
4 parties to bear their own cost."
::: Downloaded on - 09/06/2013 18:57:25 :::5 wp5088.12final-13.8.12.sxw ssm 7 The basic grievances of the Respondents-complainants were that the Petitioners by a circular dated 15 October 2011 declared and restricted to pay and/or to continue an ex-gratia amount of Rs.11000/- to the employees, who had participated in the strike on 19 and 20 September 2011. The Complainants members, as alleged, thereby denied their rights to get annual festival ex-gratia payment, by treating them unequally/discriminately, in spite of long standing practice, for more than 25 years with regard to such payment. They raised other connected grounds and prayed for the declaration that the Petitioners have engaged in and have continued to engage unfair labour practice under the MRTU & PULP Act. They prayed to quash and set aside the circular to the extent of refusal/denial of ex-gratia payment as mentioned under para 2(i) of the circular dated 15 October 2011. They had asked for the interim reliefs also.
The administrative circular to deny annual Ex-gratia Diwali payment-
8 The relevant extract of administrative circular dated 15 October 2011, is as under. It was also made available on the Petitioners' web-
site.
"Sub:- Regarding Ex-gratia payment to the Municipal ::: Downloaded on - 09/06/2013 18:57:25 ::: 6 wp5088.12final-13.8.12.sxw ssm Corporation Employee for the financial year 2010-11.
Approval has been granted by the Administration for Ex-gratia payment at the uniform rate of Rs.11,000/- each to all full time Municipal Corporation employees working in regular pay scale for the financial year 2010-11.
(I)Permissibility:
1 Amount of Ex-gratia payment shall be payable for the year 2010-11 to full time Municipal employee working in regular pay scale.
2 Ex-gratia payment is permissible on Pro rata basis for the period 1/4/2010 to 31/3/2011 to employees appointed on daily wages basis for various reasons, temporary workers, employees on ad-hoc basis and suspended employees, on the basis of actual days of working.
3 For the period 1/4/2010 to 31/03/2011 Pro rata ex-gratia payment is permissible in respect of period of leave without pay, absence without leave but excluding unpardoned period of suspension.
4 Except for the period of suspension, if by oversight even if regular monthly pay has not been charged in the pay sheet for the month of September 2011 due to reasons like leave without pay, etc. concerned employee will be entitled to ex-gratia payment on Pro rata basis for the period 1/4/2010 to 31/03/2011. However, as amount of ex-gratia payment in respect of such employees will not be taken on the computer, concerned establishment should manually prepared supplementary pay sheets for the amount of ex-
gratia payment payable to such employees and submit the same immediately to concerned Accounts Department.
::: Downloaded on - 09/06/2013 18:57:25 :::7 wp5088.12final-13.8.12.sxw ssm 5 .............
(II) However in following cases ex-gratia payment is not permissible:
1 Employees/ Workers who had participated in the th th strike on 19 and 20 September, 2011 2 Employees who have been appointed on or after 1/4/2011 3 Employees who are under suspension from 1/4/2010 or prior to it and till date.4
Teaching employees in Municipal medical Colleges and Hospitals who are in the pay scale of University Grants Commission.
5 Employees of Secondary Schools to whom Government pay scale is applicable.
6 Part time workers/employees.
7 Honorary employees etc. If amount of ex-gratia payment has been computed through computer in respect of any employees who had participated in the strike, concerned establishment department should immediately take action to call back such payment from the bank. If it is not so done, strict action shall be taken against employee responsible for the same.
(III) This year an amount of Rs.3,000/- be uniformly paid as "Bhaubij Gift" to women Health Volunteers (CHVs). For that necessary supplementary statement be prepared and submitted to concerned Accounts Department for payment on the lines of (2) below.
(IV)Regarding preparing supplementary pay sheet:-
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(IV) General Instructions:-
a), b), c) ......
1) Account Code: 210100102 Account Head:
Incentive Bonus (Supervisory and Subordinate)
2) Account Code: 210100202 Account Head:
Incentive Bonus (Labour, Technical and others) All heads of department and Assistant Commissioners are requested that concerned establishment employees be ordered to take action in accordance with instructions contained in this circular.
The said payment shall be subject to outcome of any Court order."
9 The Annual budget estimate of expenditure and income required to be prepared annually by the Petitioners normally in February and definitely before the completion of the financial year. This pre-
estimation of expenditures read with the income is always to be assessed and fixed in the budget for the next ensuing financial year, for and of every financial aspects, as contemplated under the MMC Act. Admittedly, there was no strike during the period from 1 April 2010 to 31 March 2011. The alleged strike dates are 19 and 20 September 2011. The circular is dated 15 October 2011.
::: Downloaded on - 09/06/2013 18:57:25 :::9 wp5088.12final-13.8.12.sxw ssm The case of the Petitioners-Corporation-
10 On 9 August 2011, the issue of pay revision and the board parameters were discussed and minuted and signed by the Respondents union. On 24 August 2011, the draft agreement was prepared and given to the Union. On 26 August 2011, the Petitioners Corporation called the Respondents Union to discuss the draft agreement and to finalize it. However, the Respondents Union totally rejected the draft agreement and orally informed that they will not discuss this issue with the Petitioners any more, and left the venue without any further discussion in spite of the request made by the Petitioners to sit for the discussion.
11 On 2 September 2011, the letter submitted by the Respondents union to the Corporation stating that they would not accept or sign the draft agreement and also threatened to strike indefinitely if their demands are not accepted.
12 16 September 2011, the Petitioners have issued circular to direct the staff not to participate any andolan, strike, morcha, failing which appropriate action including disciplinary action would be taken ::: Downloaded on - 09/06/2013 18:57:26 ::: 10 wp5088.12final-13.8.12.sxw ssm against them. There was no reference of any ex-gratia restriction.
13 On 17 September 2011, the Petitioners filed Complaint (ULP) No. 281 of 2011 in the Industrial Court and obtained the stay order restraining the Respondents, its allied unions from participating in strike to be held from midnight of 19 September 2011, upto 20 September 2011.
14 On 19 September 2011, the meeting was held with all the Unions. The Respondents union also invited for the discussion, but did not attend the same and sign the agreement. However, the agreement is executed with other minority unions by the Municipal Administration regarding the pay revision, inspite of the Respondents objections.
15 As alleged, on 19 September 2011 and 20 September 2011, the members of the Respondents union went on strike in spite of restraintment order passed by the Hon'ble Industrial Court dated 17 September 2011. The Petitioners have filed Miscellaneous Criminal Complaint (ULP) No. 58 of 2011 before the Hon'ble Industrial Court against the Respondents Union.
::: Downloaded on - 09/06/2013 18:57:26 :::11 wp5088.12final-13.8.12.sxw ssm 16 On 15 October 2011, the Petitioners have issued a Circular declaring that the Corporation shall pay Rs.11,000/- as ex-gratia to their regular full time employees. However, the circular further clarifies that it will not be paid to the employees who have participated in the strike on 19 and 20 September 2011.
17 The MMU has filed Complaint (ULP) No. 326 of 2011 before the Industrial Court and challenged the circular dated 15 October 2011.
On 5 January 2012, the Industrial Court passed an interim order against the Petitioner. The Petitioners challenged the order before this Court, wherein this Court has set aside the order of the Industrial Court. Thereafter, the Respondents Union have challenged the order by way of Letters Patent Appeal. This Court modified the earlier order of the Single Judge and directed to dispose of the main complaint within 3 months. The Respondents challenged the High Court order.
The Supreme Court confirmed the order of this Court and directed to dispose of the Complaint within 3 months from passing of the said order. On 19 January 2012, the Petitioners filed the written statement. The parties led their respective evidence. The final order, as passed, is under challenge in this Petition.
::: Downloaded on - 09/06/2013 18:57:26 :::12 wp5088.12final-13.8.12.sxw ssm 18 The basic Acts for the adjudication of the issue in the present case, are the Industrial Disputes Act, 1947 (for short, ID Act) and MRTU & PULP Act.
The basic statutes-
19 The ID Act defines the following concepts:-
Section 2(q) "Strike"-
"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 2(ra) "Unfair Labour Practice"
"Unfair Labour Practice" means any of the practices specified in the Fifth Schedule.
Section 2(n) "Public Utility Service"
"Public Utility Service" means-
i) any railway service [ or any transport service for the carriage of passengers or goods by air;] [ia any service in, or in connection with the working of, any major port or dock;]
ii) any section of an industrial establishment, on the ::: Downloaded on - 09/06/2013 18:57:26 ::: 13 wp5088.12final-13.8.12.sxw ssm working of which the safety of the establishment or the workmen employed therein depends;
iii) any postal, telegraph or telephone service;
iv) any industry which supplies power, light or water to the public;
v) any system of public conservancy or sanitation;
vi) ........
20 The concept "Strike" is not specifically defined in MRTU & PULP
Act. Chapter V deals with the Illegal Strikes and lock-outs. Section 24 explains the concept of Illegal Strike and Lock-out. Section 25 contemplates reference of Labour Court for declaring the strike or lock-out is illegal. The MRTU & PULP Act only provides and deals with the concept "Deemed illegal strike". The concept of "strike" and "legal strike" is also not defined under the MRTU & PULP Act, but what is provided is "illegal strike" "legal strike" and "lock out".
21 Item Nos. 4, 5, 7 and 9 of Schedule IV of the MRTU & PULP Act are as under:-
"SCHEDULE-IV General Unfair Labour Practices on the part of employers 4 To insist upon individual employees, who were on legal strike, to sign a good conduct-bond, as a pre-::: Downloaded on - 09/06/2013 18:57:26 :::
14 wp5088.12final-13.8.12.sxw ssm condition to allowing them to resume work.
5 To show favouritism of partiality to one set of workers, regardless of merits.
7 To discharge or discriminate against any employee for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
9 Failure to implement award, settlement or agreement."
"The purpose and object of strike" known to all-
22 In the society, the concept "strike" is a form of permissible protest. It is accepted mode for the employees collective bargaining power. It is neither barred or unconstitutional, provided it should be within the permissible limit and provisions of law and service conditions. It is not fundamental right. There are various facets and types of strikes. It all depends upon the facts and circumstances of each case, including the governing service conditions. The service and industrial jurisprudence empowers and permits the employer to take appropriate steps and action by following due procedure of law, like lockouts, closures, retrenchment and such related modes, depends upon their point of view. The strike is a permissible mode, subject to provisions of law, and service conditions, for the employees to put ::: Downloaded on - 09/06/2013 18:57:26 ::: 15 wp5088.12final-13.8.12.sxw ssm forward their demands affecting their valuable rights. The freedom to assemble and liberty of expression/ speech cannot be used and/or utilized for illegal purposes. The liberty and freedom with restriction, is the requirement under the Constitution of India and the statutes.
23 In the democratic society and/or even other society, the call of strike, Band, Hadtal, go slow, pen down, deliberate absenteeism and abandonment of service are recognized and accepted and regularly followed mode by all sorts. The students, workers, employees of private and/or government and/or public undertakings, including all whosoever concerned with the public utility services. The political base Calls and Bands for particular purpose and object are regular features. The businessmen or employers or such other call strike or Band to protest against the Government on various aspects are also well-known in the society. A incident of Judges' strike is also recorded by the Supreme Court. Though there are directions and orders issued by the Supreme Court from time to time and deprecated the practice of going on strike by the advocates and the concerned and also the public servants/employees basically when dealing with the public utility services, still the reality is different.
::: Downloaded on - 09/06/2013 18:57:26 :::16 wp5088.12final-13.8.12.sxw ssm 24 All institutions are human based institutions. Human strength, as well as, witnesses always play important role when it comes to their survivals right demands, exploitation, unequal treatments, discretion.
Some are in a position to control, some are not, whether literate or illiterate. The concept of strike, band or hartal, as such cannot be wiped out and eradicated from the society except and unless every one concerned decides and resolves not to follow this mode or invoke or provoke to follow this mode by expressing their reasonable demands, grievances/ reasonable opposition, etc. Basically, these are the pat of society. However, the requirement is, no one to cross the limits. It includes all. The negotiations, bargaining, settlement, discussion are the recognized modes to settle the conflicts and the disputes, but even if it is not possible and unable to settle, any one who goes and breaches these basic principles of laws and recognized conditions of the society, is required to be treated in accordance with law.
The pending cases between the parties-
25 Admittedly, the following cases are pending for final adjudication in the respective Courts i.e. Complaint Nos. 281 of 2011, ::: Downloaded on - 09/06/2013 18:57:26 ::: 17 wp5088.12final-13.8.12.sxw ssm 285 of 2011, 287 of 2011, 296 of 2011, 302 of 2011 and 311 of 2011.
Some are:-
a) Complaint (ULP) No. 287 of 2011 This Complaint is filed by the MMU against the Respondents-
Corporation for an order of restraintment from implementing the agreement dated 19 September 2011. By an interim order dated 18 October 2011, the Respondents-Corporation have been directed not to implement the agreement in respect of the members of the Complainant Union and all the consequential orders/actions. This was also made applicable to all allied unions.
b) Complaint (ULP) No. 296 of 2011:-
The MMU and other unions in this complaint have challenged and asked to stay the effect and implementation of Cluase-(1) of the agreement dated 19 September 2011 in respect of pay bands and grade-pays. By order dated 18 October 2011, the directions have been issued against the Petitioners-Corporation not to implement Clause-
(1). It is also made applicable to all the allied unions. The main complaint is pending.
::: Downloaded on - 09/06/2013 18:57:26 :::18 wp5088.12final-13.8.12.sxw ssm 26 Admittedly, three references filed by the workers Unions in the matter of payment of bonus/ ex-gratia for the year 1999-2000, 2001- 2002 and 2002-2003 are pending. The case of the Union is that the ex-gratia payment was paid by the Petitioners-employers continuously from the financial year 1985-86 to 1997-98 on the eve of Diwali every year. This ex-gratia payment is related to the festival of Diwali, which is customary bonus/ex-gratia amount. It was based upon the budgetary provisions of every year, while presenting the budget for the approval of the general body and it has been approved from time to time. The grievance was raised in those matters, as there was no provision made for such ex-gratia payment. The agitation was made even in those years.
The history of ex-gratia payments-
27 The history with regard to the ex-gratia/ bonus payment is reflected through the chart placed on the record. That chart shows, subject to agreement, such bonus/ ex-gratia payment from 1985-1986 up to 2003-2004 except above 3 financial year as referred above from 2004-2005 till 2010-2011 ex-gratia amount was paid by the Petitioners even without any agreement. The fact remains that the ::: Downloaded on - 09/06/2013 18:57:26 ::: 19 wp5088.12final-13.8.12.sxw ssm Petitioners have been making this payment since 1985-1986 by making appropriate provisions in the budget by executing separate agreement/settlement with all the employees and for last 7 years even without any agreement with the employees union. This regular ex-
gratia payment, therefore, became part and parcel of service conditions and/or at least entitlement, who are in service as alleged.
The Respondents case is that they have a right to claim the same being in employment with the Petitioners since so many years. This right just cannot be taken away abruptly, though it is ex-gratia amount paid during the festivals. The Petitioners are local body. The profit motive is not their object. The local body like the Petitioners are meant for providing services/facilities to the people at large.
28 The fact remains and undisputed position is that the common man normally suffers because of such strike calls, band and/or various such Railroko Andolan. Therefore, the Respondents union cannot be treated like the private undertakings and/or establishment for the purpose of grant of entitlement of bonus/ex-gratia. However, undisputed position on record is that the Petitioners have been making some payment towards bonus/ex-gratia / festival grants since 1985- 1986, to every employees as referred in the circular except subject to ::: Downloaded on - 09/06/2013 18:57:26 ::: 20 wp5088.12final-13.8.12.sxw ssm certain exemption. We are concerned with the denial of the bonus/ex-
gratia payment to the alleged employees who were on alleged strike on 19 and 20 September 2011.
29 The fact remains that the Petitioners are employer and the employees of the Corporation who are doing public service under their service terms and conditions, but definitely working for the public at large of the society. The internal arrangements, even if any, and/or the decision of the Petitioners to give them bonus/ex-gratia amount became regular feature since 1985. On every such decided festivals the employees of the Corporation get these ex-gratia amount. The provisions of which are regularly made by the Petitioners Corporation after considering their financial position in every years' budget before March of preceding year. This financial provisions are always made for next ensuing year for the workers by them during the preceding year. The question still remains the right of power of the Petitioners Corporation to deny this ex-gratia payment only to those who were alleged to be on strike on 19 and 20 September 2011.
Earlier issue about such ex-gratia payment-
::: Downloaded on - 09/06/2013 18:57:26 :::21 wp5088.12final-13.8.12.sxw ssm 30 The reliance was placed by the learned counsel appearing for the Petitioners on various judgments in support of their contentions, including the case of Datatraya Mahadeo Sukthankar Vs. The Municipal Corporation of Greater Mumbai 1 , whereby the issue was also with regard to the denial of payment of bonus/ex-gratia to the employees-workers. In that case the workers/some Unions went on strike for 6 days to pray for the demands for ex-gratia payment for the current year and further directions against the Corporation to enter into a similar agreement for the year 2000-2001. At that time, it was declared by order dated 22 March 2000 by this Court that the commencement of strike without giving the requisite 14 days notice is illegal strike within the meaning of Section 24 of MRTU & PULP Act.
The Government of Maharashtra also by order dated 6 September 2000 prohibited the strike. On the complaint filed by the Petitioners, the restraintment order was also passed against such Union for proceeding and continuing the strike.
31 The case was in spite of 3 orders, they went on strike.
Therefore, there was no question of grant of any relief to the Respondents. The reference was also made to the provisions of the 1 WRIT PETITION NO. 1649 OF 1997 DATED 21 AND 22 NOVEMBER 2000 ::: Downloaded on - 09/06/2013 18:57:26 ::: 22 wp5088.12final-13.8.12.sxw ssm Maharashtra Essential Services Maintenance Ordinance 1999 (now, it became Act as Maharashtra Essential Services Maintenance Act, 2011), after referring to the various provisions of law and the actual situation as the strike affects the people at large and referring to Sections 61, 63 and 64 of the MMC Act and various other provisions and ultimately thereby allowing the Petition partly declared that the resolution authorizing a payment not sanctioned by a current budgetary grant, is bad in law. However, the liberty was granted to the employees/trade union to take steps in accordance with law. Some issues were raised while deciding the matter which are as under:-
"Whether the employees-workmen in a public service organisation like the municipal corporation can resort to a strike? If so, can they resort to an illegal strike? If such an illegal strike is resorted to, is the Municipal Commissioner helpless to deal with the situation, particularly in view of the State Government having armed itself under the provisions of the Maharashtra Essential Services Maintenance Act, (Ordinance, 1999);
Is there an obligation to pay ex-gratia payment to municipal employees? And, if there is no obligation, can the municipal funds be expended thereupon?
Can any payment be made in any financial year without providing for it in the Budget of the current year?
Is the State Government helpless in the absence of a report from the Commissioner as to the validity of any resolution? Is it precluded from taking action under ::: Downloaded on - 09/06/2013 18:57:26 :::
23 wp5088.12final-13.8.12.sxw ssm section 520B and 520C with which it is empowered under the amendment carried in 1972 in the Act?
The consistent policy decision to grant ex-gratia payment-
32 The submissions were made accordingly, in the present matter also referring to those judgments/orders. The facts and circumstances as referred above are totally different. Here, there is no challenge to the grant of ex-gratia declared by the Petitioners for all the employees of the Corporation. The Petitioners having once declared the policy and consistently providing ex-gratia payment to all the employees, in the present facts and circumstances, at least these judgments are of no assistance. As noted, the employees' Reference with regard to these 3 orders non-grant of ex-gratia payment are pending. The fact still remained that the Petitioners in view to have peaceful and smooth working of Corporation, annual ex-gratia payment has been part of their good relationship and employment. The Petitioners are not bound by the provisions of the Bonus Act. It is not applicable. But to provide ex-gratia amount to their employees, just cannot be stated to be bad in law and/or impermissible. The employer knows how to hurdle and tackle the situation including the need and expectation of their employees, who are also doing public work. It is not only ::: Downloaded on - 09/06/2013 18:57:26 ::: 24 wp5088.12final-13.8.12.sxw ssm Corporation, but the employees also. The smooth management and effective working of the Petitioners is also because of such dedicated employees and servants. The Management/ Corporation/ Public body, which has capacity of paying such ex-gratia amount, not based upon only profit/as not bound by bonus distributing, this annual ex-gratia payment regularly since long, the legitimate expectation or right to get the same and need to be considered by the Court.
Ad-interim order's effect on the parties-
33 The restraintment order dated 21 March 2000, passed by this Court referring to the strike from 21 March 2000 also has to be considered from the point of view of the facts and circumstances of the situation then existing. Admittedly, the complaint that the strike in question is legal and/or illegal is still pending. However, the fact remains that the Labour Court in a complaint filed by the Petitioners has passed the interim order in the following terms on 17 September 2011:-
"ORDER 1 Application for interim relief filed by the complainant is hereby partly allowed.::: Downloaded on - 09/06/2013 18:57:26 :::
25 wp5088.12final-13.8.12.sxw ssm 2 Employees of the Municipal Corporation of Greater Mumbai are hereby restrained from going on illegal strike/ Morcha/Andolan proposed from the mid night of 19.09.2011 at the instance of Action committee.
3 The respondent no. 1 to 8 are hereby directed not to advise or instigate their member to proceed on illegal Morcha/Andolan/Strike proposed from the mid night of 19.09.2011 onwards, at the instance of action committee.
4 The employees / unions are at liberty to agitate their demands available to them under statues and Trade Unions Act, 1926.
5 The complainant is hereby directed to arrange the meeting with the union in respect of the doubt created by the respondents in respect of grade and grade pay in their letter dt. 02.09.11 before 23.09.11 and try to solve this issue as early as possible.
6 Parties are directed to appear before this court on 26.09.11 and to submit report about the meeting if arranged by the complainant.
7 Respondents to file their written statement on next date."
34 The meeting as directed, in Clause-5 of the interim order, pursuance to their letter dated 2 September 2011, before 23 September 2011, was held. The matter was directed to be placed on 26 September 2011 and also directed to submit the report about the meeting, apart from settlement, if any.
::: Downloaded on - 09/06/2013 18:57:26 :::26 wp5088.12final-13.8.12.sxw ssm The reactions and the reason about the strike-
35 The reason for culminating a letter/representation dated 2 September 2011, as recorded in the interlocutory order, is important.
Admittedly, various meetings took place with regard to the pay revisions as recorded above, including signing of MOUs of the year 2009-2010. The meetings took place with the Respondents Union on 2 March 2009 and 9 August 2011. By letter dated 27 May 2011 the Respondents Union as alleged, threatened to proceed with "Andolan"
from 7 June 2011. The Petitioners obtained a stay on 10 June 2011.
Andolan was postponed. On 10 June 2011, another meeting took place. The threat was again of strike for 24 hours from 9 August 2011. The Petitioners again obtained a stay on 9 August 2011.
Thereafter, both the parties discussed and recorded the minutes of the meeting on 9 August 2011, has signed by the Respondents Union also.
As agreed, a draft agreement was prepared and forwarded to the Respondents union on 24 August 2011. They were also called on 26 August 2011 for discussion for finalizing the draft agreement.
Admittedly, the Respondents rejected the draft agreement, and left the premises without any discussion on these issues. Admittedly, a letter ::: Downloaded on - 09/06/2013 18:57:26 ::: 27 wp5088.12final-13.8.12.sxw ssm dated 2 September 2011, forwarded by the Respondents union thereby contending that the draft agreement given to them is contrary to their demand and the agreed MOUs. They refused to accept and/or sign the agreement. The threat was again given about the strike after Anant Chaturdashi. The fact remained that the Respondents, as their demands/revision, as alleged, not accepted though in spite of repeated meetings and discussions and therefore, gave threat of strike, Andolan, Demonstrations, Stoppage of work, Morcha etc. The Petitioners have also obtained interim orders for preventing them from doing so, from time to time.
Call of strike was on 14 September 2011 but only subject to settlement-
36 The Respondents or its action committee, this time also, as recorded above, by internal circulars called the concerned employees members for their meetings on 14 September 2011 at 5.00 p.m. to take further action including on strike from 19 September 2011 midnight and for its preparations, if any. The pamphlets are part of the affidavit in complaint (ULP) No. 281 of 2011 filed by the Complainant. The newspaper cuttings, public views were annexed to ::: Downloaded on - 09/06/2013 18:57:26 ::: 28 wp5088.12final-13.8.12.sxw ssm demonstrate the intention of the Respondents to go on strike. The concerned news paper cuttings were also part of the record of the same date. The crux of those newspaper reporting was that all the concerned employees threatened to go on strike on 19 September 2011, as they are demanding implementation of 6 th Pay Commission.
A references was also made in those circulars about the ULP case Nos.
161 of 2011 and 244 of 2011. The reference was to orders dated 10 June 2011 and 9 August 2011 of refusing to entertain the interim order for peaceful strike of the Union. It was also made clear that the action Committee has decided to go on strike from 19 September 2011 from 9.00 p.m. and therefore, invited all the members to support the same. The necessary decision would be communicated/ taken and declared, on 19 September 2011 in the gathering, as fixed in Azad Maidan at 2.00 p.m. It is also mentioned and declared that they are trying to settle the matter peacefully. It was also mentioned that immediately after Diwali, there would be a code of conduct in view of the incoming Municipal Council election and therefore there was no choice but to go on strike from 19 September 2011.
37 The Respondents union circulars and paper cuttings and the threats so given, as recorded above, compel the Petitioners to file ::: Downloaded on - 09/06/2013 18:57:26 ::: 29 wp5088.12final-13.8.12.sxw ssm another complaint i.e. Complaint No. 281 of 2011 for interim order.
Pursuance to the order dated 17 September 2011, as the meeting was fixed to discuss, but as the Respondents Union rejected their draft agreement on 24 August 2011, the discussion took place again on 19 September 2011 at 3.00 p.m. in the chamber of one Aseem Gupta, M.C. (E/S) of the Respondents, as recorded in the letter dated 19 September 2011, placed on record by the counsel appearing for the Petitioners. It is alleged to have received on 21 September 2011. In the letter dated 21 September 2011 written by the General Secretary and the President of the Respondents Union again pointed out that on 19 September 2011 though visited the office at 1.00 p.m., there was no discussion. On 19 September 2011, it is alleged that on that day itself the Petitioners got the signature of other minority unions by overlooking their claim and demands. The agreement which was signed by the minority union was not even sent to the union with their letter dated 22 February 2011.
38 Though there is a dispute with regard to these two letters it shows acknowledgement of the Petitioners officials. It appears that there is no serious denial to the fact that on 19 September 2011, afternoon itself the Petitioners got/obtained signatures of the minority ::: Downloaded on - 09/06/2013 18:57:26 ::: 30 wp5088.12final-13.8.12.sxw ssm unions on the agreement, which Respondents was objected as referred above. Therefore, it is clear that on that date itself, in the afternoon, though there was discussion and/or opposition to the circulated draft agreement, the minority union signed those agreements with the Petitioners. The Respondents members were not willing and/or signed the same as their issues/points were not considered and/or discussed and/or settled in the draft agreement. This itself reflected the clear conflict of interest of majority of the employees, with regard to the revision so made by the Petitioners Corporation with regard to their pay and other benefits based upon the 6 th Pay Commission. The fact remains that all the unions have not signed and/or agreed for the agreement so prepared by the Petitioners as they would not get the benefits under 6th Pay Commission unless it is settled and signed by all the Unions, as agreed. If talk fails and so also the discussion, the signing of agreement with the minority on the 19 September 2011 afternoon itself aggravated and provoked the situation.
39 The fact also remains that the agitations so raised by the Respondents Union and its member employees remained unsettled. It is also clear that the discussion with regard to the pay-scales was going on since 2007 and there were agitation every year including in ::: Downloaded on - 09/06/2013 18:57:26 ::: 31 wp5088.12final-13.8.12.sxw ssm the year 2010-2011.
40 The Petitioners, therefore, were fully aware of the situation and the agitation of the Respondents union and in fact they initiated circulars on 16 September 2011 to avoid the inconvenience and/or incidents and/or obstructions of employees in doing their regular work/ facilities/ services to the people at large. They also prepared to maintain law and order situation to give protection to the other working employees by providing an appropriate Bandobast.
41 However, the Petitioners have issued the impugned circular dated 15 October 2011. The Respondents union challenged the said circular by Complaint (ULP) No. 326 of 2011, on 18 October 2011.
An application for interim relief was filed. The same was granted on 20 October 2011. The order was to pay ex-gratia amount of Rs.
11,000/- as per the circular dated 15 October 2011 to the members of the Respondents union along with the allied unions and it should not be disallowed only because they have participated in the strike of 19 and 20 September 2011. The Petitioners, therefore, preferred Writ Petition No. 8867 of 2011. By order dated 21 October 2011 stayed the same order till 18 November 2011.
::: Downloaded on - 09/06/2013 18:57:26 :::32 wp5088.12final-13.8.12.sxw ssm The earlier High Court directions at ad-interim stage-
42 The vacation Bench, on 26 October 2011, has passed the order in the following terms.
"i) The Corporation shall on or before 1st November, 2011 pay an amount of Rs.7500/- to its employees who have not been paid the ex-gratia amount as per the Circular dated 15th October, 2011 as an advance towards their salary.
ii) Since the Writ Petition No. 8867 of 2011 involves a very limited issue, the learned Single Judge shall hear the petition finally on 9th /10th November 2011 and pass his order on or before 14 th November 2011 without being influenced by any of the observations made in the impugned order dated 21st October 2011.
iii) All rights and contentions of the parties are kept open.
iv) In the event of the Corporation succeeding before the Learned Single Judge, the Corporation shall be entitled to deduct the said amount of Rs.7500/- from the salary payable to the said employees in the Month of December, 2011 notwithstanding any appeal that may be filed by the appellant from the said order of the learned Single Judge.
v) The parties appearing before this Court agree that no reasons be given in support of this order.
vi) Place the matter on 9th November 2011, high-on-
board, before the Learned Single Judge for hearing ::: Downloaded on - 09/06/2013 18:57:26 ::: 33 wp5088.12final-13.8.12.sxw ssm and final disposal at the stage of admission.
The appeal is accordingly disposed of."
43 The Petition was ultimately finally disposed of by order dated 2 December 2011. The operative part of the order reads as under:-
"36 Taking overall view of the matter, I am clearly of the opinion that the Tribunal committed serious error in passing the impugned order in the nature of granting monetary relief at the interim stage. The impugned order cannot be sustained and requires to be quashed and set aside and it is accordingly set aside.
Application Exhibit U-2 in Complaint (U.L.P.) No. 326 of 2011 stands dismissed. Rule is made absolute in terms of prayer clause (a). In the circumstances of the case, there shall be no order as to costs.
37 It is expressly made clear that the observations made and the findings recorded herein are only for the purpose of disposal of an Application Exhibit U-2 and the Tribunal will decide the complaint on the basis of material on record and on its own merits, in accordance with law, without being influenced by the observations made and the findings recorded herein.
44 An LPA was preferred. A Division Bench, by an order dated 23 December 2011, passed in the Civil Application filed in the said LPA has recorded as under:-
"The learned counsel appearing for the respondent Corporation states that the Corporation ::: Downloaded on - 09/06/2013 18:57:26 ::: 34 wp5088.12final-13.8.12.sxw ssm will recover the amount of advance paid to its employees from the salary for the month of January 2012 payable in February 2012. Statement is accepted. In views of this statement, there is no urgency in the matter. Place the appeal for admission on 5th January 2012.
Parties to act on the copy of this order duly authenticated by the Sheristedar/ Private Secretary of this Court.
Certified copy expedited."
The Division Bench ordered to pay reasonable interest, in case of success-
45 Finally, the Division Bench on 5 January 2011, disposed of the LPA, by consent of the parties and has passed the following order:-
"Admit. Heard finally by consent of the parties. We have heard the learned counsel for both the sides. We have perused the record. Considering that the interim relief that the appellants were seeking from the Industrial Court was also the final relief sought in the complaint, in our opinion, the Industrial Court was not justified in making a mandatory order for payment of money without considering the aspect of irreparable injury. We also find from the record that the learned Single Judge has given elaborate reasons for the order that he has made. We cannot find any fault with the findings recorded by the learned single Judge. However, in our opinion, considering that the dispute is between a statutory corporation and its employees and that some of the amount has already beed paid to the employees because of interim orders made by the Court, following order will serve the ends of justice:-::: Downloaded on - 09/06/2013 18:57:26 :::
35 wp5088.12final-13.8.12.sxw ssm ORDER 1 Industrial Court shall hear and dispose of the complaint as expeditiously as possible and as far as possible within a period of three months from the date on which writ of this order is served on the Industrial Court. While finally disposing of the complaint the Industrial Court shall not take into consideration the observations made by the learned Single Judge in his order which is impugned in the appeal.
2 In case while finally disposing of the complaint the Industrial Court allows the complaint and directs the Corporation to make payment of the ex gratia amount to which dispute relates, the Industrial Court shall be free to make direction for payment of interest on the amount at such rate and from such date as may be found suitable by the Industrial Court.
3 In case the complaint is allowed and payment of the amount is directed, the Corporation shall make the payment directed by the Industrial Court to the employees who become entitled to that payment because of the final order, within a period of 15 days from the date of the order or the next payment day whichever is later.
4 Because of the order passed by the learned single Judge now the Corporation is entitled to deduct the amount which has been paid by the Corporation pursuant to the interim order which was made by this Court but that deduction shall be made from the salary payable to the employees concerned for the months of January, February and March 2012 in equal proportion.::: Downloaded on - 09/06/2013 18:57:26 :::
36 wp5088.12final-13.8.12.sxw ssm 5 The payment shall made by the Corporation in case so directed by the Industrial Court to the employees concerned as per its order, without prejudice to the right of the Corporation to challenge that order in accordance with law.
3. Appeal is disposed of."
The hearing expedited by the Supreme Court-
46The Special Leave Petitions filed in the Supreme Court, against the same order was dismissed, as it was against the interim order. The order reads as under:-
"Taken on board.
Having heard learned senior counsel for the parties and after going through the record, we find that no ground is made out to interfere with such an interim order. These Special Leave Petitioners are, therefore, dismissed on merit.
However, learned senior counsel for parties have expressed before this Court that while considering the Petitioner's complaint pending before Industrial Court, they will not seek undue adjournments and they would endeavour to get it disposed on merit in accordance with law within a period of three months from today."
47 The parties proceeded before the Industrial Court and led their ::: Downloaded on - 09/06/2013 18:57:26 ::: 37 wp5088.12final-13.8.12.sxw ssm respective evidence. The Petitioners examined two witnesses. The Respondents union examined one witness.
48 In view of the directions issued and as agreed, the learned Member of the Industrial Court on 17 April 2012 decided the complaint in favour of the Respondents Union, by giving reasoned order, considering the evidence and material placed on record by the parties including the various pending litigations. The learned Judge has also referred the authorities cited by the parties, during the course of the argument.
The notice to all for disciplinary action's in case taking part in the illegal strike-
49 It is necessary to note another circular dated 6 January 2012 issued by the Petitioners Corporation referring to earlier circular dated 2 December 2011 under the subject regarding the action taken on the employees/workers for violating discipline by taking part in the illegal strike from the midnight of 19 September 2011 till evening of 20 September 2011. The relevant contents of that circular is reproduced as under:-
"As per the above referred orders of the Municipal ::: Downloaded on - 09/06/2013 18:57:26 ::: 38 wp5088.12final-13.8.12.sxw ssm Corporation, all the Section Heads/ Department Heads/ Head of Hospitals are being intimated that, those employees/ workers taking part in the illegal strike from the night 9.00 hours of 19.9.2011 till the evening of 20.09.2011, disciplinary action on all those employees/workers may be taken as below.
1) those employees/workers (on regular and probation) who took part in the illegal strike from 9.00 in the night of 19.9.2011 till the evening of 20.09.2011, those employees may be treated as leave without pay (L.W.P.).
2) Those employees/workers of Municipal Corporation, even when on probation, who have taken part in the illegal strike, those employees/workers under the Municipal Corporation of Greater Mumbai Act Section 83(3) (two) disciplinary action for violating the code of conduct may be taken and a fine of Rs.1000/- (Rs. One thousand only) may be imposed. But those workers/employees who have completed the probation period before the strike period may not be imposed the fine.
All the Department/ Section Heads/Hospital Heads may following the instructions strictly."
Authorities cited by the parties-
50 The Petitioners have cited the following judgments and various orders:-
1 Ispahani Ltd. Calcutta Vs. Ispahani Employees' Union, AIR 1959 SC 1147 ::: Downloaded on - 09/06/2013 18:57:26 ::: 39 wp5088.12final-13.8.12.sxw ssm The debate was whether the workmen were entitled to enjoy benefits they used to enjoy under the employer's predecessors referring to the Annual Durga Puja Bonus. That was the case between 2 private owners/ employees. The concept of implied terms of employment referred and decided in that context as the facts and circumstances, therefore, are relevant even to concede the implied terms of employment for such payment.
2 M/s. Grahams Trading Co. (India Ltd.) Vs. Their Workmen, AIR 1959 SC 1151 This was also the case of Puja Bonus/ ex-gratia payment and referring to the case of Ispahani Ltd.
(Supra). The implied agreement or the contentions of service for such ex-gratia amount was considered on the facts and circumstances. That was also a case based upon the principle of Bonus Act, to grant bonus/ ex-gratia payment on the settled formula available under the Act of private employer-employees.
3 B.N. Elias & Co. Ltd. Employees' Union & Others Vs. B.N. Elias and Co. Ltd. & Ors., AIR 1960 SC
886. Referring to above Supreme Court Judgments, again in private parties employment dispute, question was with regard to the ex-gratia bonus/payment. The Apex Court in fact, though private dispute, held that one month basic wage to subordinate staff has become customary and traditional in the employers concern.
4 Ghaziabad Zila Sahakari Bank Ltd. Vs. Additional Labour Commissioner & Ors., 2007, LAB. I.C. 1525 (SC) ::: Downloaded on - 09/06/2013 18:57:26 ::: 40 wp5088.12final-13.8.12.sxw ssm In that case the settlement itself was private and contrary to the regulations and therefore held to be of not enforceable right and so therefore, the ex-gratia payment arising out of that.
In that case, the ex-gratia payment, based on facts and circumstances held neither of production bonus, nor incentive bonus nor customary bonus nor any statutory bonus as it was held against the object of society and contravention of the rules and regulations of the Act. That is not the case here.
5 CEAT Ltd. Vs. Anand Anasaheb Hawaldar & Ors., 2006 LAB I.C. 1675 (SC) This was a case dealing with items 5, 9 and 10 of the MRTU & PULP Act referring to the term favouritism and partiality. That was the case of different scheme/packages given to the employees. There was no assurance to make particular payment. The concept of favouritism is explained also as under:-
"11 ....Favouritism means showing favour in the matter of selection on circumstances other than merit. (per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, 2005). The expression 'favouritism' means partiality, bias. Partiality means inclination to favour a particular person or thing. Similarly, it has been sometimes equated with capricious, not guided by steady judgment, intent or purpose. Favouritism as per the Websters' Encyclopedic Unabridged Dictionary means the favouring of one person or group over others having equal claims. Partiality is the state or character being a partial, favourable, bias or prejudice"
14 It is not every kind of differential treatment ::: Downloaded on - 09/06/2013 18:57:26 ::: 41 wp5088.12final-13.8.12.sxw ssm which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason and actuated by self-interest- whether pecuniary or personal.
That was also a case of MOU of 1994 arrived at because of pendency of litigation with regard to the VRS. Facts and circumstances are totally different.
The concept of favouritism and/or bias or partiality and differential treatment being the position of law need no further elaboration.
6 Pandian Roadways Corporation Ltd. Vs. The Presiding Officer and Others, 1996 LAB I.C. 2589 (Madras H.C.) 7 V.G. Textiles Private Limited Vs. Assistant Commissioner of Labour and Anr. 2010 LAB I.C. 2408 (Madras H.C.) The case was under Payment of Bonus Act. The question was entitlement of bonus by the dismissed employees under the Payment of Bonus Act. So also the case in V.G. Textile Private Limited.
8 Cipla Employees Union Vs. Cipla Ltd. and Others, 2001 III CLR 836 (Bom. H.C.) The issue of ex-gratia was remanded for reconsideration on the basis of evidence on record. The reference was also made to Section 10 of ID Act and item 5 of Schedule II and item 9 of Schedule IV of the MRTU & PULP Act. That was also a case of private employment and also based upon the Payment of Bonus Act.
9 Buckingham and Carnatic Co. Ltd. Vs. Workers of ::: Downloaded on - 09/06/2013 18:57:26 ::: 42 wp5088.12final-13.8.12.sxw ssm the Buckingham And Carnatic Co. Ltd., 1953 AIR 47. The Apex Court has defined and explained the word "strike" as contemplated under Section 2(q) of the ID Act, whereby it is held that the stoppage of work falls within this ambit. It is also held that the refusal to work continue even for few hours was an illegal strike. As the textile mill was public utility industry and as no notice had been given to the management, the Apex Court thereby upheld the lost of benefit of holidays of the workers. It is also held that the stoppage of work was not taken certain day's action and several workers in their individual capacity wanted leave on that date. That was a case after full trial on the issue. That was not a case of "public body", refusal of self declared ex-
gratia payment to only one class. The facts were different.
10 B.E.S.T. Undertaking Bombay and another Vs. B.E.S.T. Kamgar Sena and Others, 1986 (52) F.L.R.
39. (Bom.H.C.) This Judgment was cited by both the parties.
The Petitioners' case is that it was an order. The case of the Respondent is of a Judgment, which supports their case on all the aspects. In that case, the bonus for year 1983-1984 as payable to entire staff was refused by a subsequent resolution dated 15 October 1984 only to those who attended at least 3 days during the period when some workers were on strike. It is held that such resolution was discriminatory, unreasonable, arbitrary and itself amounted to an unfair labour Practice as contemplated under Item 5 of Schedule IV of the MRTU & PULP Act. It is also held that the right was created based upon the agreement.
::: Downloaded on - 09/06/2013 18:57:26 :::43 wp5088.12final-13.8.12.sxw ssm 11 Balmer Lawrie and Co. Ltd. Vs. Balmer Lawrie Employees' Union, Bombay and Others, 1989 Lab. I.C. 88. (Bom. H.C.) That was also the case of strike during the pendency of reference, referring to Sections 22 to 24 of ID Act and Section 24 of the MRTU & PULP Act. It was held that the provisions of Section 24 of the MRTU & PULP Act prevailing over Sections 22 to 23 of the ID Act. The reliance was for the concept "deemed to be illegal under this Act" referring to the strike in question. The situation here was different.
12Industrial Tubes Manufacturing Co. Ltd. Vs. S.R. Samant and Another, 1981 LAB I.C. 379. (Bom.
H.C.) That was the case under Section 25 read with Schedule IV Item 4 in relation to the dispute with private employers. The concept of "Legal strike" and "illegal strike" has been elaborated. The declaration was sought under Section 24 of the ID Act.
In that case, the reference was also initiated under Section 25 of the ID Act for declaration that the strike was illegal, though there was injunction order granted by the Court under MRTU & PULP Act. The issue of "lockout" was also there. That was a case of interlocutory order.
13 Ahmedmiya Ahmedji Vs. The Indian Hume Pipe Co. Ltd. & Another, 1998(1) Bom. C.R. 81.
This was also the case of revolving around the "illegal strike" without notice referring to Section 25(5) of the MRTU & PULP Act read with Section 10 and 22 of the ID Act. It is also observed there that the demands were ::: Downloaded on - 09/06/2013 18:57:26 ::: 44 wp5088.12final-13.8.12.sxw ssm pending over 20 years. Without settlement, strike wholly could not be justified. The misconduct was proved under the proceedings of ID Act. The reliance was also placed on the interpretation of Section 25(5) of the MRTU & PULP Act for the concept "deemed illegal strike".
14 Vyapari Sahakari Bank Maryadit Vs. Ambure P.A. & Others, 2006(4) Bom. C.R. 21 This was again in reference to the declaration of strike as illegal dealing with the provisions of Bombay Industrial Relation Act 1946 and MRTU & PULP Act.
It is held there that the provisions of MRTU & PULP Act is in the summary in nature as held by the Supreme Court in Cipla Limited Vs. Maharashtra General Kamgar Union 2001(2) Bom. C.R. (S.C.) 822. 15 Datatraya Mahadeo Sukthankar Vs. The Municipal Corporation of Greater Mumbai, Writ Petition No. 1649 of 1997, dated 21st and 22nd November 2000.
16 The Municipal Corporation of Greater Mumbai Vs. Municipal Mazdoor Union & Others, Writ Petition No. 9879 of 2000 dated 21 March 2000.
17 The Municipal Corporation of Greater Mumbai Vs. Municipal Mazdoor Union & Others, Writ Petition No. 9879 of 2000 dated 22 March 2000.
51 The Respondents have cited the following Judgments and orders:-
::: Downloaded on - 09/06/2013 18:57:26 :::45 wp5088.12final-13.8.12.sxw ssm 1 Himalaya Drug Co. Makali Vs. II Additional Labour Court, Bangalore 1986 (II) LLJ 45.
This was also the case under Payment of Bonus Act, whereby it is observed that right to forfeit bonus has to be confined to accounting year only, in which the act of misconduct was committed and not earlier or succeeding accounting years.
2 Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, (1979) 3 SCC 489.
It deals with the payment and jurisdiction and authority of local body like the Petitioners, including test of their action on the anvil of Article 14, covered arbitrariness, discrimination and treating equal, unequally.
3 R.D. Gupta and Others Vs. Lt. Governor, Delhi Admn. And Others (1987) 4 SCC 505 The employees are entitled for "Equal pay for equal work". It further deals with the aspect of Article 14 referring to discrimination in Service Law.
4 Municipal Mazdoor Union Vs. Municipal Corporation of Greater Mumbai and Another, order passed in Letters Patent Appeal No. 385 of 2011 dated 5 January 2012.
5 Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, (1980) 2 S.C.C. 593.
::: Downloaded on - 09/06/2013 18:57:26 :::46 wp5088.12final-13.8.12.sxw ssm Referring to discharge or action against the employees without holding inquiry, it is held that the participation is illegal strike, even though it was participation. Action against the workmen has to be taken individually, based upon the particular findings against him alone. It is also held that mere participation in the strike without more not enough for suspension or dismissal.
That was also the case under Sections 11 and 11-A of the ID Act.
6 Management of Kairbetta Estate, Kotagiri P.O. Vs. Rajamanickam, AIR 1960 SCC 893.
This judgment dealt with the right of the employer and employees referring to the provisions of Industrial Disputes Act with regard to the "lockout" and "Lay- off" read with "strike". It is observed "Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock out 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."
7 State of Madhya Pradesh Vs. Rakesh Kohli and Another (2012) 6 S.C.C. 312.
The test of classification based on intelligible differentia which should have rational object to be achieved has been elaborated. (para 25) 8 Maharashtra General Kamgar Union and Others Vs. Balkrishna Pen Private Limited and Another, 1987 (3) Bom. C.R. 425 Referring to MRTU & PULP Act Section 30, it is ::: Downloaded on - 09/06/2013 18:57:26 ::: 47 wp5088.12final-13.8.12.sxw ssm observed that in order to come to a decision that whether strike is "deemed to be illegal". It is also necessary to decide whether the strike is "legal" or "illegal" and if it is "illegal", thereafter to decide whether it is "deemed to be illegal" under the Act. It is also held that notwithstanding Section 25 of the ID Act, the Court has jurisdiction to decide whether the strike is "deemed to be illegal" under the Act. What applies to strike will equally apply to the lock out. (Para 13.) 52 Both the counsel have cited various judgments in support of their respective submissions. None of the above Judgments, in my view, deal with the situation and the facts and circumstances as present one. So far as the provisions of law and the settled issues on law, there cannot be any discussion. But, it is always necessary for the Court to consider those provisions of law based upon the given situation, facts and circumstances, material and the evidence led by the parties, based upon their relationship. The relationship between the employees-employers, and in the present case the Petitioners Corporation, needs to be tested from their respective point of view, the record, the service conditions, the various settlements and negotiations entered into between the parties from time to time, and apart from this long standing relationship governing the employment in question.
::: Downloaded on - 09/06/2013 18:57:26 :::48 wp5088.12final-13.8.12.sxw ssm The longstanding settled practice of ex-gratia payment-
53 Admittedly, the Petitioners Corporation is not a profit earning and/or established to earn the profit. It governed by the statute and various circulars read with their own declared service and conditions.
The Corporation being one of the well-known and the organized local body, based upon their financial position read with the budgetary aspect, always takes policy decisions to have a good and smooth relationship with their employees, since long. The record shows that the Petitioners Corporation have on various occasions, subject to agreements between all the unions, from time to time, after due negotiations and settlements, considered and granted various benefits.
The well recognized practice of settling and negotiations with the unions whenever it comes to the question of service conditions and/or related aspect of service conditions. The employees also knows and understand their respective obligations, apart from the service conditions, their responsibility to provide services to the people at large. Both the parties are aware of their respective obligations. It is always necessary for both the parties to have a good relationship, so that there will be an effective and fruitful relationship to provide essential and useful services to the people at large. All the aspects to ::: Downloaded on - 09/06/2013 18:57:26 ::: 49 wp5088.12final-13.8.12.sxw ssm connect such good relationship is integrated and interconnected.
54 It is necessary to mention here again that there is no question of conflicts and/or disputes so far as the respective rival Unions are concerned, specifically when it comes to the smooth working and management of the Petitioners Corporation. It is difficult for the Petitioners to give and/or make any Rules and/or regulations and/or enlarge the facilities only for a class of employees. For all the employees, they have no choice but to treat everybody equally in every aspect.
55 Admittedly, at least since 1985-1986 upto 1998-1999 subject to agreement with the unions, certainly with all unions, the Petitioners used to give the payment by giving nomenclature, initially "bonus"
and later on an "ex-gratia". It is relevant to note here the undisputed position that it was always subject to agreement till 2003-2004. When we talk about agreement, it definitely covers negotiations, settlements between the parties. Whether nomenclature is "Bonus"/"Ex-gratia"
payment, in my view, is of no consequences. The regular and constant annual payment and basically around the festival season, though not part of so called service conditions, still remained to be a regular ::: Downloaded on - 09/06/2013 18:57:26 ::: 50 wp5088.12final-13.8.12.sxw ssm future without any interruption or break, when both the parties through negotiations and/or after agreement, provided and/or accepted the particular amount annually, therefore, to say that the employees of Petitioners have no right to claim such amount, in my view, is not correct.
56 Any rights so created and when the parties admittedly acted upon since 1985-1986, just cannot be stated to be a discretionary and exclusive powers of the Petitioners Corporation to grant or not to grant such annual festival "ex-gratia" payment.
57 Admittedly, the Petitioners Corporation, know the importances of giving such ex-gratia and/or bonus regularly to their employees. This has its own value and importance for maintaining good relationship and relations for smooth and proper working and considering the fact that the employees of the petitioners have been doing public work on the basis of the fixed salary with related benefits, still deserve something more. Initially they agreed to grant the same by entering into agreements after due negotiations on various aspects and lastly since 2004-2005 till 2010-2011 without entering into any kind of agreement. They, accordingly, ::: Downloaded on - 09/06/2013 18:57:26 ::: 51 wp5088.12final-13.8.12.sxw ssm since 2004-2005 regularly taking care of this aspect in every financial year by putting and taking care of budget of the year. It appears that as the Petitioners themselves decided to provide and/or granted such festival ex-gratia amount, there was no occasion for the Union to agitate and/or re-agitate the issue. Both the parties, in my view, accepted this long standing practice by giving, as well as, taking the festival ex-gratia amount annually, constantly without any serious discussion on the same. The petitioners have in fact from time to time based upon the various circumstances, including their financial position, have increased the amount from Rs.7000/- to Rs.11,000/-.
This may or may not be part of so called undisclosed negotiations and/or settlement, but the fact remains that there was no specific agreement entered into, as it used to be till 2003-2004.
Some pending cases about denial of ex-gratia payment-
58 For year 1999-2000 upto 2001-2002 for whatever the reasons, the Petitioners-Corporation could not provide any ex-gratia amount.
Admittedly, the references are pending. It means, all the employees concerned have not accepted the action of the Petitioners not to grant them any festival amount during this period. Prior to this period, ::: Downloaded on - 09/06/2013 18:57:27 ::: 52 wp5088.12final-13.8.12.sxw ssm subject to agreement, and after these 2 years upto 2004, subject to agreements, the Petitioners provided them this ex-gratia amount and later on, as recorded voluntarily without any agreement. This, in my view, also support the case of the Union and/or the employees of the Petitioners that they all the time treated this ex-gratia amount to be paid by the Petitioners, though annually, as their entitlement being in the employment of the Petitioners, though not specifically provided in their service conditions. The Unions/employees never agreed to and/or accepted, even non grant of such ex-gratia amount of 3 years period, itself as they belief and in fact, proceeded since 1985-1986 that they have right to get such ex-gratia amount, whichever nomenclature it has, during the festival days/period.
The corporation not governed by payment of Bonus Act-
59 It is relevant to note that the Petitioners, admittedly not governed by the provisions of Bonus Act and/or related provisions.
Therefore, those principles cannot be extended, based upon the citations so made and referred by the parties. This at least cannot be the foundation to judge the right and/or power and/or authority of the Petitioners Corporation. They are governed by their own statutes, ::: Downloaded on - 09/06/2013 18:57:27 ::: 53 wp5088.12final-13.8.12.sxw ssm their own policy decisions and for the reasons so recorded, always take this decision to grant such festival ex-gratia amount, constantly since 1985. Therefore, if they are not governed by the provisions of Bonus Act and if they take such policy decision to treat and/or provide this lumpsum amount annually to their employees-workers, in my view, we have to see and consider the facts and circumstances of the case only. The submission that there was no right, whatsoever, created in favour of the employees, even though they granted ex-
gratia payment regularly upto 1998-1999 thereafter there was break of 3 years, though they continued to grant the same upto 2010-2011, is unacceptable. Such long standing practice and clear understanding between the parties and as every one acted accordingly since long, in my view, any break so given will definitely affect their legitimate expectations. The concept of legitimate expectations, basically when we are dealing with the local body like the Petitioners, cannot be overlooked. The long understanding so referred above became also the foundation of "the doctrine of the legitimate expectations", apart from the implied agreement between the parties.
60 It is not the case that they granted the ex-gratia payment always voluntarily. It was always subject to agreement and negotiations since ::: Downloaded on - 09/06/2013 18:57:27 ::: 54 wp5088.12final-13.8.12.sxw ssm 1985-1986 till 2003-2004. If this is undisputed position on record, the submission of the learned counsel appearing for the Petitioners that they have power to take away such right and/or restrict the grant of such ex-gratia festival payment, is unacceptable. Having once shown and taken policy decision and accordingly they have been acting so many years and now to say that there is no even implied agreement and there is no question of any expectations by the employees of Corporation to claim and/or demand such money, is contrary to the long standing agreement to provide such ex-gratia payment, as recorded above. Merely because the Petitioners, now given this ex-gratia payment voluntarily and without recording any agreement, that itself cannot be the reason to accept the case of the Petitioners that being master/employer/local body they can restrict and/or they can control and/or they can discriminate and/or they can create a class to extend these facilities annually, is impermissible, specifically when, we are testing the action of the Petitioners Corporation on the anvil of Article 14 and 16 of the Constitution, read with the provisions of the MRTU & PULP Act. It is made clear that once it is accepted that the provisions of the MRTU & PULP Act and/or such related laws are applicable to the local bodies like the Petitioners, though they cannot be treated like other private ::: Downloaded on - 09/06/2013 18:57:27 ::: 55 wp5088.12final-13.8.12.sxw ssm establishment and/or undertakings, yet their arbitrary, discriminatory, unreasonable, partiality and unfair actions can be decided under those provisions and basically within the concept of "unfair labour practice".
The corporation policy decision to grant festival ex-gratia amount-
61 In the present case, the Petitioners Corporation have themselves decided, as per their long standing practice, to provide this ex-gratia amount to their employees, so there is no question to test the issue whether they have right and/or they have power and whether they can at any time take away such ex-gratia amount. They themselves have taken policy decision to provide this ex-gratia amount. There is no challenge, so far as their power is concerned, being Corporation they are free to this. The issue here is, whether they can restrict and discriminate and/or refuse to grant this ex-gratia amount to certain class of employees, as mentioned in the circular dated 15 October 2011.
62 The circular, as noted above, is nothing but an administrative order/ action taken by the Petitioners Corporation. They have made ::: Downloaded on - 09/06/2013 18:57:27 ::: 56 wp5088.12final-13.8.12.sxw ssm clear declaration by this circular that they would provide this ex-gratia payment to the Municipal Corporation Employees for the financial year 2010-2011. It is also mentioned that the approval has been granted by the administration for ex-gratia payment at the uniform rate of Rs.11000/- each to all the Municipal Corporation employees working in regular pay-scale for the financial year 2010-2011. It is specifically mentioned that such ex-gratia amount shall be payable for the year 2010-2011 to the full time Municipal Employees working in regular basis; the ex-gratia payment is permissible on pro rata basis for the period 1 April 2010 to 31 March 2011 to the employees appointed on daily wages basis for various reasons, temporary workers, employees on ad-hoc basis suspended employees, on the basis of actual days of working. It is also extended for the same period by observing that the pro-rata ex-gratia payment is permissible in respect of period of leave without pay, absence without leave but excluding unpardoned period of suspension. The other related eligibility clauses are also explained.
63 Strikingly, it is specifically mentioned that "Employees/ Workers who had participated in the strike on 19th and 20th September 2011", the ex-gratia payment is not payable/permissible. It is also mentioned ::: Downloaded on - 09/06/2013 18:57:27 ::: 57 wp5088.12final-13.8.12.sxw ssm that the employees who have been appointed on or after 1 April 2011 and who are under suspension from 1 April 2010 and/or prior to it and till this date, are not eligible. They have also excluded other classes of the employees with whom we are not concerned for adjudicating the issue in question.
The financial/budgetary provisions every year for such payment-
64 It is always necessary for the Petitioners and/or person like the Petitioners before granting and/or declaring any financial benefit whatever and whichever the nomenclature they were provided, to have clear estimate and/or their capacity to make the payment based upon the financial sources available with them. They just cannot announce any grant of such amount without having the provisions for the same. As recorded, the Petitioners being governing the local body, is also have their annual budget system. It is relevant aspect, which they need to take care before expiry of the financial year. We are concerned with the financial year 2010-2011. The budgetary provisions of the year 2011-2012, yet to follow. It is always at the end of the financial year.
::: Downloaded on - 09/06/2013 18:57:27 :::58 wp5088.12final-13.8.12.sxw ssm 65 From the plain reading of the above circular, it is clear that the Petitioners Corporation has taken their usual decision, as they used to take since long to provide this ex-gratia payment to all the employees, including temporary, ad-hoc and covering period of leave, without pay, absence without leave, the period of suspension, if any and on the basis of actual days of workings, by taking note of their services, this itself shows as per the regular practice, they always take decision to grant this ex-gratia payment based upon the amount for the respective financial year. It also means, when the budgetary provision was made during the financial year 2010-2011, care was taken to provide and facilitate this amount to all the workers/employees, as recorded above, for the services they rendered during this financial year 2010- 2011.
The power to deny ex-gratia only to some employees-
66 Admittedly, the circular is dated 15 October 2011, reference period /grant of ex-gratia period was for the financial year 2010-2011.
This circular nowhere provides and/or dis-entitles any of the employees, if they fall within the ambit of their permissibility clause to deny their right of ex-gratia payment. All the employees/ members ::: Downloaded on - 09/06/2013 18:57:27 ::: 59 wp5088.12final-13.8.12.sxw ssm of the union, therefore, in view of this permissibility clause entitled to get the ex-gratia payment, as they covered within the said ambit. This striking clause, however, takes aways the rights so crystalized and cleared by the Corporation based upon their policy decision to provide ex-gratia payment for the financial year 2010-2011. The power of the Corporation to provide such permissibility clause and/or non eligibility clause, cannot be denied. One who grants and to take the decision to grant, is always entitled to create and/or to put on certain reasonable conditions. The action of the Petitioners Corporation to take away such right based upon their services, which they admittedly rendered during the financial year 2010-2011, cannot be taken away abruptly in such fashion.
The basis for disqualification to claim ex-gratia-
67 The base of disqualification-illegal strike-deemed illegal strike is "participation in the strike on 19 and 20 September 2011". The Petitioners Corporation, have used the word "the strike". The concept of "strike" is well defined and already known in the service and labour jurisprudence, since long. I have already observed the basic purpose and object of the strike so far as the employees/workers are ::: Downloaded on - 09/06/2013 18:57:27 ::: 60 wp5088.12final-13.8.12.sxw ssm concerned. The MRTU & PULP Act deals with the concept of legal and illegal strike and so also the ID Act. The "deemed illegal strike" is another aspect under the MRTU & PULP Act. Both the counsel have referred the provisions, including the connected and related authorities surrounding the same. Admittedly, the Petitioners have not used those terms "illegal strike" and/or "deemed illegal strike".
The plain reading of the word "strike" just cannot be enlarged by the pleadings and/or evidence in the Court in such fashion. The case was that on the face of record, considering the provisions of the law and the alleged actions, that it was illegal strike and/or at least deemed illegal strike. I am not inclined to accept this submission for the simple reason that the Petitioners Corporation cannot extend their case for the first time in the Court, even by leading the evidence and making related submissions to treat the strike being illegal strike and/or deemed illegal strike and thereby concluded that the employees who participated in the strike, are not entitled for any ex-
gratia amount.
The class was created-
68 The administrative order/circular in question, knowing fully the provisions of law, as well as, the meaning of "illegal strike" or ::: Downloaded on - 09/06/2013 18:57:27 ::: 61 wp5088.12final-13.8.12.sxw ssm "deemed illegal strike", still deliberately chosen the word "the strike".
The plain reading of the word "strike", therefore, cannot be extended to cover the submissions which they are making for the first time in the Court, as referred above. There is no question of going to that aspect by leading rival evidence in the Court. The Petitioners Corporation, at least cannot go beyond their own clear circular. They have not even sought such specific declaration. Their intention and object was clear. They know which definite class of employees participated in the strike. It is clear that they wanted to cover all the employees who participated in strike.
69 In my view, as recorded above, the word "strike" itself cannot be read and/or interpreted to mean by overlooking the facts and circumstances of the case that it is "deemed illegal strike" and/or "illegal strike". Even, there is no question of getting any declaration or decision when the intention was to cover all the employees who participated in the strike. They never thought to go behind the mass, as well as, individual decisions of such employees, before forming their unilateral opinion, of taking away crystalized right. Considering the background, the intention was to cover all the Unions members who participated in strike from third Shift of 19 September 2011 to ::: Downloaded on - 09/06/2013 18:57:27 ::: 62 wp5088.12final-13.8.12.sxw ssm first and second shifts of 20 September 2011.
70 One cannot overlook the factual position that the Respondents Unions were all the time agitated and refused to accept the so called draft agreement, forwarded for signatures. The minority Unions, in spite of pending agitations, accepted the Petitioners agreement and signed on 19 September 2011, some time in the afternoon. The news travelled fast and penetrated the volcanised minds of the concerned.
The reaction multiplied without say or submission and/or discussion or any instigation. The fact remained that, all the concerned members of the Respondents union, from their individual point of view, by taking their own decisions, expressed their redressed and decided not to work on particular shift. It is not, as picture is created that in all shifts on 19 and 20 September 2011 all the employees refused to work, were absent, without sanctioned/approved leave. The self created situation, admittedly, resulted into negative actions against the targeted employees. The "employees/workers, alleged to have participated in the strike" definitely covers, mostly the members of the Respondents union. It is not even the case of the Petitioners that all the members of the Respondents Union, not attended the respective work on that day. Some of the members definitely worked in spite of ::: Downloaded on - 09/06/2013 18:57:27 ::: 63 wp5088.12final-13.8.12.sxw ssm the situation so referred above. All were definitely fighting for their rights since long. It is about 40000 employees who refused to work as per the Petitioners, on a given shifts. The Petitioners Corporation therefore, immediately without getting any sort of declaration and intentionally by creating the class used the words " participated in the strike", and thereby excluded mostly the Respondents union members, as referred above. By this, the Petitioners Corporation added the clause which treated them not entitled for the ex-gratia Diwali payment, though they have crystalized right to get this ex-gratia amount, for the year 2010-2011.
71 It is necessary now to consider, what provoked some of the members of the Respondents union to take such action individually, which resulted into mas action, though there was an interim order operating against the Respondents union. The Petitioners, as submitted, want to achieve their object by punishing and/or teaching lesson to those who participated in the strike, in spite of above circumstances. Therefore, they have decided to take away the accrued right. Thereby, they have divided the employees in two groups. The effect was that, the group who had supported and signed the agreement, got the ex-gratia payment, but those of Respondents ::: Downloaded on - 09/06/2013 18:57:27 ::: 64 wp5088.12final-13.8.12.sxw ssm union, who refused to sign those agreements, debarred from crystalized ex-gratia payment, solely on this ground.
The Petitioners action and provocation are relevant factors-
72 The Court needs to consider, the facts and material on record read with the issues involved in the matter. The Petitioners', as well as, the Respondents Union's respective evidence and material placed on record read with the documents so relied and referred by the counsel, should be the foundation even to accept the case of the rival parties. The scope and purpose of present Writ Petition is quite limited. The Court is bound to consider the pleadings and the material placed on record by both the parties. The points goes to the root cannot be overlooked, specially the clear documents and the admitted facts. The Petitioners role in this back ground, in my view, is also relevant. It is not only the Respondents union's or its action committee's action and/or inaction.
73 Admittedly, the issues with regard to the pay-scales have been on discussion, since long and in the present case, definitely since 28 June 2007 all the unions submitted their chartered of demand for ::: Downloaded on - 09/06/2013 18:57:27 ::: 65 wp5088.12final-13.8.12.sxw ssm revision of pay and allowances claiming from 1 April 2005, ultimately, they raise the same with the revision with 6 th pay commission. The respective options were given. The unions were not accepting the same for various reasons. Meetings and discussion took place from time to time. The pay-scale structures were on discussion. As recorded above, the Petitioners Corporation have various categories of the employees including grades and various such other classes of employees who are the members of respective unions. The requisite formulas and calculations are always required for the financial decision in such matters. The length of agreement read with its implications on their pay-scales, as well as, the Petitioners budget were always the matter of discussion. The Petitioners officials, the leader of the Respondents Union, as well as, the other unions were taking all pains to make the effective agreements. The rival unions have submitted their respective draft. The discussion was on.
74 All the concerned employees, who are definitely the literate persons, and one who knows their rights though they are associated with the particular unions and workers and/or bound by their service conditions, but when it comes to the question of salary/ payment, they are definitely serious and concerned about any such negotiations ::: Downloaded on - 09/06/2013 18:57:27 ::: 66 wp5088.12final-13.8.12.sxw ssm and/or discussions. We cannot neglect the fact that it is not the case of Union leaders, who just go and sign the agreement, as directed and/or suggested by the Petitioners Corporation and/or their officials;
it concern the individual employee's present and future rights.
75 Some decisions, after due meetings and discussions with the Petitioners officials have been recorded. The meeting was again called, as there was no communication. On 24 August 2011, a draft proposal forwarded by the Petitioners. The same was not accepted at least by the Respondents union, because it was not according to the terms of the MOUs. A letter was forwarded with their proposal on 2 September 2011 regarding pay-scales from 1 January 2006 to 31 December 2015. It was also expressed that they would postpone their strike, but it was intimated that in case of situation and uncertainty continues with regard to the pay scales, they would go on strike at the costs of the Petitioners.
76 It is clear from the record that in spite of due discussion and deliberation as recorded above, the Respondents Union were not getting response from the Corporation. The proposed/draft agreement though forwarded by them, as recorded, was not acceptable to the ::: Downloaded on - 09/06/2013 18:57:27 ::: 67 wp5088.12final-13.8.12.sxw ssm Unions. When we talk about the Union, it also means the rights of employees. It is not the case that the Petitioners were not at all aware of all these backgrounds and pending negotiations. Admittedly, they have taken various Court's order from time to time, preventing the so called announced strikes. It is not the case that the Respondents Union and/or such unions have all the times, in spite of Court's order proceeded on strike. There are instances on record to show that as directed by the Court, they proceeded to discuss and negotiate the issue regularly on timely basis. The Petitioners have knowledge and notice of all such threat of strike and/or their demands. They are not foreign to the demands so raised by the Respondents from time to time. There was no solution available. The question of their respective rights, present as well as, the future. The momentum in the mind individually, as well as, collectively, was constantly hampering.
The Petitioners Corporation may be for some reason unable to accept the suggestions made, based upon the signed documents/ MOU. The Respondents Union, therefore, had no choice but to discuss such issues by their way, in case of failure of their demand and/or uncertainty. The action committee still called strike, as it was of all the employees. They published accordingly some time in 14 September 2011. It was circulated throughout, by every and all the ::: Downloaded on - 09/06/2013 18:57:27 ::: 68 wp5088.12final-13.8.12.sxw ssm media. The propaganda was definitely and always creates, a sort of pressure and impression on everybody. The Petitioners were aware about all this. They also geared up themselves to cope up the situation. They have issued circulars, accordingly to see that the public at large should not suffer announced strike. Till this time there was no agreement signed against the wish of the majority unions.
The interim order against the Respondents Unions-
77 Admittedly, the discussion was on, even during this period.
Nothing was coming forward from the Petitioners' side, in spite of the news, circulars, pamphlets, etc. As usual, the Petitioners have filed complaint (ULP) No. 281 of 2011 on 17 September 2011 in the Industrial Court and obtained restriction order against the Respondents union and its allied unions and members restraining from participating in strike which was announced to be held from the mid night from 19 September 2011. Now, here it is relevant to note that the interim order passed by the Court on 17 September 2011, which is already reproduced, shows that the Learned Judge has though passed restraintment order, still directed the Petitioners-
complainant to arrange the meeting with the Union in respect of issue ::: Downloaded on - 09/06/2013 18:57:27 ::: 69 wp5088.12final-13.8.12.sxw ssm created by the Respondents about the grade and grade pay in their letter dated 2 September 2011 before 23 September 2011. It was specifically directed to try to solve this issue, as early as possible. The clear direction was given to appear before the Court on 26 September 2011, and to submit the report about the meetings, if arranged, by the complainant. The Respondents case was throughout that the action committee announced and threatened the alleged strike. They never instigated or provoked the alleged strike.
78 This order, itself shows the respective obligations by both the parties. The things were clear to all the parties; the Respondents union should not give effect to the so called strike; the petitioners must try to see and remove the doubt, if any, and clear the position before 23 September 2011. The directions so given to appear on 26 September 2011 with the report, was expected a free and fair discussion on and on or before 23 September 2011 and whatever the result of such meeting, its report to be submitted on 26 September 2011. Even on the date of the order passed by the Court, there was no issue on agitation though the strike was announced. Everybody expected free and fair discussion and/or negotiations at least in view of the order passed by the Labour Court.
::: Downloaded on - 09/06/2013 18:57:27 :::70 wp5088.12final-13.8.12.sxw ssm 79 The Petitioners on 19 September 2011, knowing fully the background of the order passed by the Court, the agitation and the announcement of strike by the Respondents Union, called the meeting of all the unions. The Respondent Unions were also invited for the discussion. The issue still remained to be adjudicated and/or decided.
It appears that there was no solution coming up, including to the draft agreement so forwarded. The Petitioners were fully aware of the specific problems/objections so raised by the Respondent unions. The Respondent unions were not willing to accept the terms and conditions of the draft agreement. Therefore, there was no question of accepting those terms, merely because the Petitioners have called the meeting and invited all the unions. Everybody has right to take their own decisions. The other minority unions, ultimately as willing, signed the agreement on 19 September 2011, in the afternoon. This itself further triggered the apprehension that the Petitioners would go ahead with the agreement by getting it signed by the minority unions.
80 The Respondents Union again tried to meet on the same day pursuance to the telephone call received by them but no one was there. All these details are though disputed, the receipt date recorded ::: Downloaded on - 09/06/2013 18:57:27 ::: 71 wp5088.12final-13.8.12.sxw ssm in the letters dated 19 September 2011 and 23 September 2011.
The issue is not the receipt of the letter, but the point still remained that the Respondent Unions, since so many months not willing to accept the draft agreement, so suggested by the Petitioners and always under apprehension that the Petitioners would proceed with the same agreement and, once it is signed by the minority and it would be implemented. All their agitations and their objections covering their individual employees right, will be definitely affected and they will be bound by such unilateral agreement.
The natural and uncontrolled reactions of the employees' after unilateral execution of the Agreement on 19 September 2011 at afternoon with the minority unions-
81 The call of strike was published and well within the knowledge of all the parties, including the concerned employees. In view of the order passed by the Court though not individually against all the employees, but against the Respondents unions, and therefore, they have to wait for the discussion as the meeting was scheduled on 19 September 2011. The Petitioners proceeded to go ahead with their objected draft agreement and obtained the signatures of the minority union, the situation, therefore provoked without any say and/or ::: Downloaded on - 09/06/2013 18:57:27 ::: 72 wp5088.12final-13.8.12.sxw ssm intimation and/or instigation and/or any kind of provocation from the Respondents union or their leaders. The question was of their individual rights. Definitely by the evening, nothing turned in favour of the Respondents union, not even the basic discussion, though directed by the Court. Their position remained the same. The question was of individual decision now to act or not to the announced strike. The fact remained that some of the employees not attended the work. They knew the result of such non-attendance and/or absenteeism without permission and/or sanctioned. They knew the service terms and conditions and the consequences of such re-action of not attending the particular shift on the date. They knew, they will face the consequences, as per the service terms and conditions subject to show cause notice and/or their explanation. The consequences and/or the action for such absenteeism and/or leave without permission and/or sanctioned was well-known. The whole re-action was to express their grievances to the alleged high handed and arbitrary action of the Petitioners. The Petitioners, if can proceed in spite of the order, how is that the individual employees who are literate persons and one who know their rights and/or their entitlement, would not react. The situation so created, though strike was called by the Respondent Union on 14 August 2011, in my view, ::: Downloaded on - 09/06/2013 18:57:27 ::: 73 wp5088.12final-13.8.12.sxw ssm just cannot be mixed together and/or linked together, to say that the Respondents, all the time, have pre-planned and/or arranged specifically, to go on such strike as announced on 19 and/or 20 September 2011. The situation would have been different, if both the parties, at least pursuance to the order passed by the Industrial Court, come forward to settle and/or discussed the issue further.
82 The situation would have been different if the Petitioners not proceeded to get the signature of the minority Union on 19 September 2011. The situation would have been different if the Respondents union, in a given case, agreed to sign those agreements subject to the consideration of their grievances as recorded in the letter dated 2 September 2011. The situation in question, in my view, could have been avoided. But the situation so created is a decisive factor now to consider the action of the Petitioners still to take away the crystalized right of the Petitioners by creating the different class of the employees.
Unfair labour practice-
83 There is no question of taking away the rights of the employees to express their grievances, but certainly in a reasonable way.
::: Downloaded on - 09/06/2013 18:57:27 :::74 wp5088.12final-13.8.12.sxw ssm Anything excess just cannot be accepted. The employer and/or the local body, also have a right to control and/or manage such huge effective staff/ employees, but at the same stroke, they are also required to act reasonably. One cannot overlook that the Petitioners being the "State", within the Article of 12 of the Constitution of India, their action and/or inaction are always tested on the anvil of Article 14 and 16 of the Constitution of India, apart from their own governing statute and the service conditions. The contractual relationship including the service conditions are definitely important aspect while dealing with such matters. They are not free to grant and/or to take away the accrued right of ex-gratia payment, at any time. The Court needs to consider all these aspects; reasonableness, arbitrariness, bonafide classification, partiality and "unfair practice", as contemplated under the Laws.
The Petitioners have already taken disciplinary action as noticed and informed on 16 September 2011 itself-
84 Admittedly, as recorded by the learned Judge, the Petitioners have already taken steps based upon this strike. They suspended 113 employees; issued show cause notices to 3676 employees; but ::: Downloaded on - 09/06/2013 18:57:27 ::: 75 wp5088.12final-13.8.12.sxw ssm subsequently they have revoked the suspension order almost of all the employees. The Criminal cases are pending against the employees, who exceeded their limits. The Petitioners, therefore, are taking all steps as required under the service conditions against such employees by issuing individual show cause notices and/or action. They are free to take the action in accordance with law, if they think so, provided, it is always subject to fair and free inquiry and by giving full opportunity to the parties to justify their action and/or inaction in the facts and circumstances of the case. In the present case, importantly, before 19 September 2011, itself, they have circulated and published their line of action against all those who would participate in such strike. Those circulars dated 16 August 2011, and others nowhere mentioned about such steps except disciplinary actions. The whole action, therefore, of the Petitioners and their Officers are illegal, without due notice and contrary and misunderstanding of their own settlement terms and the circulars.
85 Admittedly, the litigations between the parties in respect of various connected issues on disputes are pending. It includes the subsequent action/ litigation arising out of and based upon the circular, as well as, the draft agreement in question. All the parties are ::: Downloaded on - 09/06/2013 18:57:27 ::: 76 wp5088.12final-13.8.12.sxw ssm contesting the same in all respective forum.
The reasoned order of the Labour Court-
86 The basic issues as framed are as under:-
1 Does the complainant union proves that by denying ex-gratia payment of Rs.11000/- to the employees participated in strike dtd. 19Th & 20th September 2011 as per circular dtd. 15/10/2011 the respondents have committed unfair labour practices under item-5 & 9 of Sch-IV of the MRTU & PULP Act 1971?
2 Does the complainant proves that it is entitled to relief as prayed for?
3 What order?"
87 Both the parties, therefore, as recorded above, led the evidence to support their respective cases based upon the pleadings, basically by keeping aside the issues pending before the other litigations. The learned Judge, while passing impugned order on 17 April 2012 has considered the pleadings, evidence so led and the material placed on record by the parties, apart from respective submissions and the citations so referred and relied.
88 Importantly, it is specifically mentioned that "the Corporation ::: Downloaded on - 09/06/2013 18:57:27 ::: 77 wp5088.12final-13.8.12.sxw ssm has not taken declaration from the Labour Court or Industrial Court declaring 19 and 20 September strike as illegal". There is no dispute that the provisions of payment of wages Act are not applicable to the Respondent Corporation. Source to receive the ex-gratia amount Rs.11000/- is a circular dated 15 October 2011. The learned Judge has given finding, while passing the final order, in following paragraphs.
"Admittedly, there is no declaration either from Labour Court or Industrial Court for declaring the alleged strike of 19th 20th September 2011 as an illegal and unjustified. There is no dispute that this court has passed order on 17/9/11 restraining complainant union and employees of the corporation from resorting to strike from 19 th & 20th Sept. 2011. The corporation has already initiated the action against some of the employees and it is right of the management to initiate the action against such employees and if charges proved against them to imposing punishment after conducting the inquiry and that right is not in dispute before this court. But admittedly the strike dtd. 19 Th & 20th Sept. 2011 falls within the accounting year 2011-12 i.e. 1/4/11 to 31/3/12 and not during the accounting year 2010-11 i.e. 1/4/10 to 31/3/11. If the employees are disqualified for participating in the strike then that disqualification might be for the accounting year 2011-12 and certainly not accounting 2010-11.
The witness no.1 for the respondent has already admitted in his cross-examination that conduct of the employees were good during the period 2010-11 and there were on equal footing with the employees who have received payment of exd-gratia as per circular dtd. 15/10/11 for the period 1/4/10 to 31/3/11. The respondents by denying ex- gratia classified two classes of employees i.e. employees ::: Downloaded on - 09/06/2013 18:57:27 :::
78 wp5088.12final-13.8.12.sxw ssm participated in the strike of 19th & 20th Sept. 2011 are denied ex-gratia by the corporation. Certainly both these classes were on equal footing for accounting year 2010-11 and therefore any benefit or reward or ex-gratia for the year 2010-11 granted then both the classes employees should have to be treated at par. The witness for the respondent admitted that employees who were facing departmental inquiries in the year 2010-11 and either dismissed or terminated after 1/4/11 were given ex-gratia payment by the corporation. The employees who have denied ex-gratia for participating on the strike of 19th & 20th Sept. 2011 were on better footings than the employees who were facing departmental enquiry and suspended pending enquiry during 2010-11 and therefore the action of the management refusing ex-gratia payment of Rs.11000 to the employees on the ground that they have participated in the strike of 19 th & 20th Sept. 2011 amounting to discriminatory treatment by creating two classes of employees between themselves amounts to unfair labour practice under item 5 of Sch IV of the MRTU & PULP Act."
"20 The complainant union has proved the there is implied agreement between the municipal employees and the corporation to declare ex-gratia and to receive ex-gratia and it is long standing practice between the parties to declare and receive ex-gratia payment, except the year 1999-02 for which the dispute is pending."
"The action of the respondents denying the ex-gratia to the employees on the ground that they have participated in the strike amounts to discrimination under item 5 of Sch IV of the MRTU & PULP Act. Even as per the documents produced by the respondents it can be seen that 113 employees were suspended including 91 security guards by the respondents and show cause notices were issued to 3676 employees. Subsequently the respondents have revoked the suspension order of almost all the employees. The ex-gratia has been denied to about 30,000 to 40,000 employees and action has been initiated by the respondents only against 113 employees and 3676 employees, that means the respondents ::: Downloaded on - 09/06/2013 18:57:27 :::
79 wp5088.12final-13.8.12.sxw ssm have not taken action in respect of other employees for participating in the strike of 19th & 20th Sept. 2011. If no action has been taken by the corporation then how ex-gratia payment can be denied to them which was declared for accounting year 2010-11. If no action has been taken by the corporation then how ex-gratia payment can be denied to them which was declared for accounting year 2010-11. The complainant has proved that it is long standing practice in the corporation to declare ex-gratia to the employees during 1985 to 2010 except the period 1999-02 for which the disputes are pending before the Industrial Tribunal. By denying the ex-gratia to one set of workers is in item-9 of Sch-IV of the MRTU & PULP Act.
"In the light of answer to Issue no.1 in affirmative I am of the considered opinion and hold that the complainant is entitled to the relief as required in the present complaint.
The employees who have been denied the ex-gratia by the respondents as per circular dtd. 15/10/11 are entitled to receive ex-gratia payment with 12% interest from the date of deduction of ex-gratia from the salary of the employees by the corporation. This discretion is given to this Court by the Hon'ble Division Bench in LPA No. 385. Hence I answer Issue No.2 in affirmative and Issue no.3 accordingly and proceed to pass the following order."
Additional circumstances and the reasons to maintain the order-
89 The right to have methodological mechanism of collective bargaining, even otherwise, cannot be taken away by putting such pressure and/or tactics to compel the unions to sign such agreement.
The situation so created by the Petitioners, in my view, is also additional factor, which just cannot be overlooked while considering ::: Downloaded on - 09/06/2013 18:57:27 ::: 80 wp5088.12final-13.8.12.sxw ssm their own action, reaction and/or provocation so created by and because of signing of the agreement on 19 February 2011 in the afternoon. The action of the employees just cannot be treated as deliberate and/or intentional and/or pre-planned, blaming only the Respondent Union and/or even the action Committee, as noted, the things were beyond everybody's control.
90 The action of the Petitioners to create such class, in the background, was definitely with intention to deny this ex-gratia payment only to those, being the members of the Respondents unions, who never accepted and/or agreed, signed the draft agreement in question. We cannot over look these backgrounds, while testing the action of the Petitioners Corporation.
91 As recorded above, that whatever may be the nomenclatures, the Respondent members and/or employees of the Petitioners have crystalized and accrued right, in the present facts and circumstances, of ex-gratia payment of the year 2010-2011. I am not inclined to accept their case, now having once declared and announced those ex-gratia payment for all to submit and/or to agitate the issue about the legality and/or statutory entitlement and/or rights of such ex-
::: Downloaded on - 09/06/2013 18:57:27 :::81 wp5088.12final-13.8.12.sxw ssm gratia payment. They themselves have announced, they just cannot now say that the Respondents union have no right for entitlement of this ex-gratia payment. The issue is, in my view, whether they can restrict the same entitlement ex-gratia payment right only to the employees who have not participated in the strike and who have participated in the strike. The irrespective of the alleged participation, if any, and/or absenteeism and/or leave without intimation and/or sanctioned or alleged proved misconduct, get decided by due procedure of law, the right so accrued and crystalized and so called established practice, is integrated and interconnected though not specifically agreed and/or provided, just cannot be taken away for the one shift non working of respective employees.
No proved case of instigation or provocation on 19 September 2011- 92 There is no material brought on record, in this background, to show and suggest that the Respondents Union and/or their officers instigated and/or provoked this strike after interim order and that resulted into actual cessation of working and/or incidents from 3 rd shift of 19 September 2011 up to 1st and 2nd shift of 20 September 2011. It is not correct to say that it was deliberate, intentional and ::: Downloaded on - 09/06/2013 18:57:27 ::: 82 wp5088.12final-13.8.12.sxw ssm have no justification whatsoever. The strike in question even if any, in the present case, unless adjudicated finally, just cannot be treated as illegal and/or deemed illegal, basically at the instance of the Petitioners Corporation, as even their circular nowhere expressly mentioned. The pendency of other litigations, revolving around the connected issues, therefore, just cannot be adjudicated in the present complaint filed by the Petitioners. The Court also needs to consider whether the order so passed by the Court has exceeded its jurisdiction and/or pass the order beyond the record and/or it is contrary to the provisions of the law and the pleadings, material available on record.
93 The restriction so created by them through this circular, in view of above is discriminatory, arbitrary, unreasonable, partial and falls well within the ambit of unfair practice. The case and the submission so raised, based upon the pleadings and as decided by the learned Judge, in no way, can be stated to be perverse, contrary to law and/or record or illegal, specifically the conclusion so arrived at by the learned Judge.
The importance of ex-gratia seasonal amount-
::: Downloaded on - 09/06/2013 18:57:27 :::83 wp5088.12final-13.8.12.sxw ssm 94 Another facet of such ex-gratia seasonal festival amount, is nothing but providing them fixed amount during the festival time. It is every year's gift not only to the employees but to their family also.
I am not inclined to accept that in these background, mere participation in such so called strike can be the reason and/or the petitioners have no power to take away the accrued and crystalized right of the year 2010-2011 for the alleged action, allegedly committed by them in the accounting/financial year 2011-2012. Such action to take away the crystalized right by such retrospective administrative order in such fashion, definitely falls and covers the respective items of MRTU & PULP Act.
The refusal of ex-gratia impermissible-
95 I am not inclined to accept even the case of the Petitioners that there was no notice before participation in the strike. The notice as contemplated under the Acts including the period so mentioned, is definitely with intention so that the employer and/or person like the Petitioners local body may take appropriate steps to get so called declaration revolving around the call of strike. This is also necessary so that they can take appropriate steps in accordance with law and/or ::: Downloaded on - 09/06/2013 18:57:27 ::: 84 wp5088.12final-13.8.12.sxw ssm to gear up their machinery to avoid the loss to the industry and/or in the present case to the people at large. As noted, the call of strike whosoever, just itself cannot be treated as illegal and/or bad in law.
In the present case, as noted, if the intention was just to punish and/or take action against those who have participated in the strike, without even declaring and/or treating the strike, as illegal and/or deemed illegal, on the date of issuance of such circular, in my view, now just cannot be permitted to agitate this issue including of the so called no notice of strike, in this proceeding. The minority union and its employees therefore, in any way, would not be affected by this circular because everybody knew on that date itself that, as the strike was announced, the Respondents union and/or its members would be affected and irrespective of any decision whether strike is illegal and/or deemed illegal. I have already observed that the Petitioners just cannot act in such fashion. The object so sought to achieve by them to punish and/or impose the penalty and/or take punitive action without due notice and/or due inquiry in accordance with their service conditions itself, shows the high handedness and arbitrary exercise of powers which is definitely impermissible.
96 The situations could have been avoided, had the pending ::: Downloaded on - 09/06/2013 18:57:27 ::: 85 wp5088.12final-13.8.12.sxw ssm grievances been redressed first or the execution of the agreement postponed, at least till the next date of court hearing as fixed. The positive role of Petitioner is very important. This is not a case of violent, unrest. Both need to value and respect their support system.
Every call of strike or strike in public utility service is not illegal. It is unjust and impermissible to deprive them of accrued ex-gratia amount abruptly, without due opportunity, notice and hearing. It breaches the principle of natural justice also. It no-where debarred or decision against the Petitioners to take action in accordance with law, if the alleged case is proved. They have already taken. There is no issue on this also. The bone of contention is pre-judged circular dated 15 October 2011 and it's plain/clear contents. Therefore, the Court has no option but to consider all the aspects from both the parties point of view of the restricted issue, but based upon the material on record.
97 The pre-judged administrative order in present case is based upon wrong foundation that the Petitioners can at any time, take away the accrued and crystalized rights arbitrarily, even of few of its employees, by overlooking their own policy decisions and long standing practice, based upon agreements for long. The action has prejudged the issue; and decided the unilateral power of the ::: Downloaded on - 09/06/2013 18:57:27 ::: 86 wp5088.12final-13.8.12.sxw ssm Petitioners for all the time to come. In view of the aforesaid civil consequences, the judicial review is permissible, also on the foundation of wednesbury principle. The administrative order is nothing but an action to whittle down and the deprivation of the crystalized and accrued right of the employees members of the unions and not of all other employees.
Early settlement will be in the interest of all-
98 I have hinted to settle the matter, but it appears that for whatever may be the reason, they are not ready to do so. I am inclined to observe that the Management like the Petitioners definitely required good hand and such efficient employees who are admittedly working since long on fixed amount i.e. salary. The claims therefore, such person if so made, and as they have no other source of income, then earlier settlement is always give peace and effective solutions.
The rival unions case and conflicts if any, ultimately hamper all employees' rights to get revised pay-scales and/or all benefits, at the earliest. The balance needs to be struck by all. No one can compel their employer to make the payment and/or increase the salary as per their wish and demand. The Petitioners are also bound by their own ::: Downloaded on - 09/06/2013 18:57:27 ::: 87 wp5088.12final-13.8.12.sxw ssm constrains. In the present case, the Corporation has been doing all sorts of necessary work and rendering services to the people at large of Mumbai but through these employees. The Corporation always take care of everyone including the people at large and also of their employees. The grant of ex-gratia payment is one of the example. No one can deny that. I am inclined to observe that the respective rival unions are also involved and need to play their important role in settling the case. Half heartedly signed agreement even if any and as recorded already, has already created number of litigations, the matters are pending even for these situations. No one will be benefited including the persons who have signed the agreement and even the Petitioners-Corporation. The parties are still at liberty to settle the matter including the settlement with the rival unions, even if any. So that all the employees will be benefited at the earliest. Let wisdom prevails.
99 Taking overall view of the matter, and for the reasonings so recorded above, the final order is as under:-
ORDER
i) The Petition is dismissed.::: Downloaded on - 09/06/2013 18:57:27 :::
88 wp5088.12final-13.8.12.sxw ssm
ii) The impugned order dated 17 April 2012, is maintained. However, the time for payment as already directed, is extended for further 6 weeks from today.
iii) The liberty is granted to the parties to settle the matter.
iv) There shall be no order as to costs.
(ANOOP V. MOHTA, J.)
Index to Judgment (89 to 91) Annexed.
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INDEX to Judgment
Sr. Particulars Page No.
No. From To
1 The litigation background 2 4
2 Impugned order dated 17 April 2012 4 4
passed by the Industrial Court in
Complaint (ULP) No. 326 of 2011
3 The administrative circular to deny 5 8
annual Ex-gratia Diwali payment
4 The case of the Petitioners-corporation
ig 9 12
5 The basic statutes 12 14
6 "The purpose and object of strike" 14 16
known to all.
7 The pending cases between the parties 16 18
8 The history of ex-gratia payments 18 20
9 Earlier issue about such ex-gratia 20 23
payment
10 The consistent policy decision to grant 23 24
ex-gratia payment
11 Ad-interim order's effect on the parties 24 26
12 The reactions and the reason about the 26 27
strike
13 Call of strike was on 14 September 27 31
2011 but only subject to settlement
14 The earlier High Court directions at ad- 32 34
interim stage-
15 The Division Bench ordered to pay 34 36
reasonable interest, in case of success
16 The hearing expedited by the Supreme 36 37
Court
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17 The notice to all for disciplinary 37 38
action's in case taking part in the illegal
strike.
18 Authorities cited by the parties 38 47
19 The longstanding settled practice of ex- 48 51
gratia payment
20 Some pending cases about denial of ex- 51 52
gratia payment
21 The corporation not governed by 52 55
payment of Bonus Act
22 The corporation policy decision to 55 57
grant festival ex-gratia amount
23
The financial/budgetary provisions
every year for such payment-
57 58
24 The power to deny ex-gratia only to 58 59
some employees
25 The basis for disqualification to claim 59 60
ex-gratia
26 The class was created 60 64
27 The Petitioners action and provocation 64 68
are relevant factors
28 The interim order against the 68 71
Respondents unions
29 The natural and uncontrolled reactions 71 73
of the employees' after unilateral
execution of the Agreement on 19
September 2011 at afternoon with the
minority unions-
30 Unfair labour practice 73 74
31 The Petitioners have already taken 74 76
disciplinary action as noticed and
informed on 16 September 2011 itself.
32 The reasoned order of the Labour 76 79
Court
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33 Additional circumstances and the 79 81
reasons to maintain the order
34 No proved case of instigation or 81 82
provocation on 19 September 2011
35 The importance of ex-gratia seasonal 82 83
amount
36 The refusal of ex-gratia impermissible 83 86
37 Early settlement will be in the interest 86 87
of all
38 Final order 87 88
(Anoop V. Mohta, J.)
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