Bombay High Court
The Chairman And Managing Director Of ... vs India Spice Jet Staff And Employees ... on 3 May, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
2023:BHC-OS:3881
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1240 OF 2022
1 The Chairman and Managing Director
M/s. Spice Jet Limited, 319 Udyog Vihar,
Phase-IV, Gurugram - 122 016
2 The Station Manager, M/s. Spice Jet
Limited, Terminal 2, Sahar Road,
Andheeri (E), Mumbai 400 099 ...Petitioners
Versus
All India Spice Jet Staff and Employees
Association, A Trade Union registered
under The Trade Unions Act, 1926
Having its office at Shop No.2, Sai Krupa
Chawl, Adarsh Nagar, Nambalipada,
Kalina, Santacruz (East),
Mumbai 400 029 ...Respondent
Mr. Kiran Bapat, a/w Mr. Mahesh Shukla, i/b Mr. Niraj
Prajapati, for the Petitioners.
Mr. Sanjay Singhvi, Senior Advocate, i/b Mr. Jaiprakash
Sawant, for the Respondent.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 10th APRIL, 2023
PRONOUNCED ON : 3rd MAY, 2023
JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties heard finally.
2. This petition takes exception to an order dated 10 th January, 2022 passed by the learned Presiding Officer, Central Government Industrial Tribunal - 2, Mumbai ("the CGIT-2, 1/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC Mumbai") on an application for interim relief (Exhibit-3) in reference CGIT-1/18 of 2021, whereby the petitioners - first party were directed to provide employment to 463 workmen as per the terms and conditions which prevailed as of 31 st December, 2021.
3. Shorn of unnecessary details, the background facts can be stated as under:
(a) The petitioners are in the aviation industry.
Petitioner No.1 is a Civil Aviation Company. On account of the situation which arose due to Covid-19 Pandemic and the consequent disruptions the petitioners claim that they were passing through a bad phase and striving hard to sustain themselves in the business.
(b) Respondent is a Trade Union registered under the Trade Unions Act, 1926. Respondent served a strike notice dated 1st June, 2021 on the petitioners. It led to the proceedings before the Conciliation Officer. The petitioners asserted before the Conciliation Officer that the concerned employees were appointed on fixed term contract basis and were governed by the provisions contained in Section 2(oo)(bb) of the Industrial Disputes Act, 1947 ("the Act, 1947"). Conciliation failed.
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(c) Respondent preferred Writ Petition No.9111 of 2021 seeking a direction to the appropriate government to make an industrial reference. Pursuant to order passed on 23 rd December, 2021 the appropriate Government made a reference to the CGIT-2, Mumbai being referred CGIT-1/18 of 2021. On 29th December, 2021, the respondent filed its statement of claim. An application for interim relief (Exhibit-3) also claimed to be filed. The petitioners contested the application by filing a written statement on the very day.
(d) The learned Presiding Officer, CGIT passed ad- interim order on 29th December, 2021, inter alia, directing the Assistant Labour Commissioner to submit list of employees, who were concerned in the reference while noting an undertaking of the management that it did not intend to terminate the services of their employees without following due process of law and that they were at liberty to take disciplinary action and follow the process of law in terminating the services of employees, if required, as per terms of the contract.
(e) Post completion of pleadings on the application for interim relief, the learned Presiding Officer, CGIT, heard the first and second party. By the impugned order, the learned Presiding Officer was persuaded to partly allow the application holding, 3/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC inter alia, that the management did not adhere to the undertaking given to the Tribunal that it would not terminate the services of its employees. And, thus, the employees who came to be terminated on account of non-renewal of the contract were entitled to interim relief. The petitioners were therefore directed to provide employment to 463 workers on the terms and conditions which prevailed on 31st December, 2021.
4. Being aggrieved, the petitioners have invoked the writ jurisdiction. On 19th January, 2022 when the petition was listed before this Court, the petitioners were directed to tender a list of their workmen, who had been termed as fixed term contract employees and who could be offered work, on that day. The respondent - Union was directed not to precipitate the issue whilst directing the petitioners to maintain status quo as it existed on that day and not to deploy contractual employees or personnel through any agency.
5. It would be contextually relevant to note that the petitioners claim to have offered work to 60 employees. However, there is serious dispute as to whether those 60 employees were, in fact, offered effective work in true spirit. 4/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 :::
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6. In the wake of the aforesaid controversy, the parties have filed affidavits and counter affidavits. A detailed reference to the pleadings of the parties may not be necessary, especially in the context of the nature of the impugned order passed at an interim stage and the consideration it deserves in exercise of the writ jurisdiction. It would be suffice to note that the core controversy between the parties revolves around the question as to whether the concerned employees fall within the ambit of the exclusionary Sub-clause (bb) of Clause (oo) of Section 2 of the Act, 1947 and thus the termination of their services does not amount to retrenchment within the meaning of the Act, 1947.
7. Before adverting to determine the core controversy, it may be appropriate to note that the exact number of employees, who were allegedly retrenched and governed by the impugned order, was also a matter in controversy. The parties are now not at issue over the fact that there were 371 employees who according to the petitioners have been refused employment being on fixed term contract basis. The parties however differ on the number of employees who have put in a particular number of years of service. The controversy on facts, on this score also, does not significantly bear upon the determination of this petition. 5/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 :::
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8. Mr. Bapat, the learned Counsel for the petitioner, strenuously submitted that the impugned order singularly lacks consideration. It is devoid of reasons. It is bereft of consideration on the well recognized parameters which govern the grant of interim relief. Mr. Bapat would urge that the learned Presiding Officer CGIT has copiously noted the contentions of the parties in the pleadings and submissions canvassed in support thereof and thereafter allowed the application by a cryptic observation. In the process, according to Mr. Bapat, the learned Presiding Officer completely misconstrued the facts and incorrectly recorded that it was an admitted position that 463 workers were working with the petitioners as of 29th December, 2021, and that there was breach of undertaking on the part of the petitioners. A complete misreading of the statement made on behalf of the petitioners vitiated the entire approach of the Tribunal.
9. Mr. Bapat would further urge that the learned Presiding Officer did not at all consider the adverse situation in which the petitioners were operating, including the substantial reduction in the number of flights and the revenue, which were relevant considerations in determination of balance of convenience and irreparable loss in the event of grant or refusal of interim 6/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC relief. Without adverting to all these material considerations, the learned Presiding Officer directed the petitioners to provide work to the employees, where no work was at all available, submitted Mr. Bapat.
10. Mr. Bapat further submitted with a degree of vehemence that at any rate the impugned order cannot be sustained as it has the effect of granting the final relief at an interim stage. The Supreme Court, according to Mr. Bapat, has time and again reminded the Courts and Tribunals about unjustifiability of granting final relief at an interim stage. Attention of the Court was invited to an order passed by the Supreme Court on 3 rd December, 2021 in Civil Appeal No.7393 of 2021 (arising out of SLP (C) No.18009 of 2021) in the case of National Textile Corporation Limited (WR) vs. Priyanka Pradeep Chavan.
11. Mr. Singhvi, the learned Counsel for the respondent - Union, countered the submissions on behalf of the petitioners. A two-pronged submission was canvassed by Mr. Singhvi. One, the petitioners were, evidently, guilty of not adhering to the undertaking that they would not terminate the services of the employees, duly recorded by the Tribunal. Mr. Singhvi would urge that, based on the said undertaking, the learned Presiding Officer by way of ad-interim relief had directed the petitioners to 7/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC maintain status quo upto 4th January, 2022. Yet, in clear violation of the aforesaid order, the services of the employees - members of the respondent - Union were terminated on 31 st December, 2021 on a specious ground that they were on fixed term contract. Therefore, the Tribunal was fully justified in directing the petitioners to provide work to the said employees during the pendency of the industrial reference.
12. Two, according to Mr. Singhvi, the petitioners, irrespective of the nature of the undertaking, could not have disrupted the status quo ante industrial reference. In no circumstances, the petitioners could have terminated the employees in breach of the provisions contained in Section 33(1)(a) of the Act, 1947, without obtaining prior permission of the Tribunal. Mr. Singhvi would urge that since the very question of the grant of permanency and the petitioners desisting from the practice of employing the employees on a fixed term contract basis for years together was the subject matter of the industrial reference, it was not open to the petitioners to terminate the employees on the ground that the they were on a fixed term contract. In a situation like this, according to Mr. Singhvi, no recourse can be made to the exclusionary Sub-clause (bb) of Clause (oo) of Section 2 of the Act, 1947.
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13. Mr. Singhvi urged that the position in law is no longer res intergra. A strong reliance was placed on the judgment of the Supreme Court in the case of Bhavnagar Municipalty vs. Alibhai Karimbhai and others1 and a judgment of a learned Single Judge of this Court in the case of Dalanvalan Imarat Bandhkam and Patbandhare Kamgar Union and Others vs. State of Maharashtra and others2.
14. Mr. Singhvi would further submit that as the termination was clearly in teeth of the provisions contained in Section 33(1)
(a) of the Act, 1947, the submission that the interim relief takes the shape of the final relief and, therefore, could not have been granted at an interim stage, does not merit acceptance.
15. To start with, it is imperative to note the genesis of the industrial dispute. It is the claim of the employees that they have been working with the petitioners for years together. The petitioners controvert by asserting that all the concerned employees have been appointed on fixed term contract basis. From the own showing of the petitioners as many 60 employees have completed 4 to 10 years. As noted above, the parties are at issue over the number of employees who have put in a specified period of service.
1 (1977) 2 SCC 350.
2 (1991) 4 BCR 111.
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16. It is in this context, the demands were raised by the employees in the strike notice and letter dated 17 th October, 2021. At this juncture, it would be contextually relevant to note that the appropriate Government in exercise of the powers under Clause (d) of Sub-section (1) and Section 2A of Section 10 of the Act, 1947 made a reference for adjudication of the following points.
"1. Whether the demands raised in strike notice and letter dated 17th October, 2021 (copy enclosed) including the demand of permanency in service of workmen as raised by the union is legal, fair and justifiable? If yes, what relief they are entitled to?
2. Whether the action of the management of Spice Jet Limited in terminating the services of 2 workmen i.e. Ms. Pinky Yadav and Ajay Shukla w.e.f. 12.10.2021 during the pendency of conciliation proceedings in violation of Section 33 of the ID Act, 1947 as claimed by the Union is legal, fair and justifiable? If not, what relief they are entitled to?
3. Whether the action of the management of Spite Jet Limited in terminating the services of 78 workmen on fixed term contract (list enclosed) during the pendency of conciliation proceedings in violation of Section 33 of the ID Act, 1947 as claimed by the Union is legal, fair and justifiable? If not, what relief they are entitled to?"
17. The aforesaid reference arose in the backdrop of the fact that the respondent alleged that the services of 78 workers were not extended after 1st June, 2021 on the premise that the term of their contract came to an end. As regards 371 employees as well, it is the specific stand of the petitioners that the term of their contract came to an end on 31st December, 2021 and 10/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC therefore it did not amount to retrenchment. In paragraph 5 of the affidavit-in-reply to the application for interim relief it was categorically asserted that the petitioner had not terminated the services of any employee. Term of 78 employees came to an end on 31st May, 2021. Whereas the term of 371 employees came to an end on 31st May, 2021 and non-renewal of the contract clearly falls under the exclusion provided in Section 2(oo)(bb) of the Act, 1947.
18. The question which thus wrenches to the fore is whether the cessation of the engagement of 371 employees on account of non-renewal of the contract (as claimed by the petitioners) post 31st December, 2021, during the pendency of the reference before the Tribunal falls within the ambit of the protective umbrella contained in Section 33(1)(a) of the Act, 1947. In other words, whether the petitioners altered the conditions of service applicable to the workmen immediately before the commencement of the conciliation proceedings.
19. Section 33(1)(a) of the Act, 1947 read as under:
"[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.--
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, 11/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding;
or
(b) .......... Save with the express permission in writing of the authority before which the proceedings is pending."
20. A plain reading of the aforesaid provision would indicate that there is a clear prohibition in Section 33(1)(a) of the Act against altering the conditions of service of a workman sans written permission of the Tribunal or other Authority before whom the conciliation or other proceedings, in the wake of an industrial dispute, are pending. The section thus makes the power of the employer to alter the conditions of service to the prejudice of the workman involved in the industrial dispute subject to the permission in writing of the authority before which the proceeding is pending. If this staus quo ante is not maintained the proceedings before the specified authorities would be rendered infructuous by the employer resorting to the device of altering the conditions of service of the workmen.
21. The question as to whether retrenchment constitutes an alteration in condition of service so as to fall within the tentacles of the provisions contained in Section 33(1)(a) of the Act was considered by the Supreme Court in the case of Bhavnagar Municipality (supra). In paragraph 2, the Supreme 12/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC Court has narrated the factual background in which the aforesaid question arose in the said case. It reads as under:
"2. There was an industrial dispute pending between the Bhavnagar Municipality (briefly the appellant) and its workmen before the Industrial Tribunal in Reference 37 of 1974 referred to it under Section 10(1)(d) of the Act on March 5, 1974. The said industrial dispute related to several demands including the demand for permanent status of the daily rated workers of the Water Works Section of the Municipality who had completed 90 days' service. While the aforesaid industrial dispute was pending before the Tribunal, the appellant, on September, 30, 1974, passed orders retrenching 22 daily rated workmen (briefly the respondents) attached to the Water Works Section of the Municipality. It is not disputed that the appellant had complied with Section 26F of the Act and due retrenchment compensation had been paid to those workers. On June 20, 1975, the respondents filed a complaint to the Tribunal under Section 33A of the Act for contravention of Section 33 of the Act by the appellant."
(emphasis supplied)
22. After adverting to the provisions contained in Section 33(1)
(a) of the Act, 1947 and the essential features thereof, the Supreme Court enunciated the legal position as under:
"13. Retrenchment may not, ordinarily, under (a) of the Industrial Disputes Act. The circumstances clearly showed that there was breach of section 33(1)(a) of the Industrial Disputes Act. Once the conclusion reached that there was breach of Section 33(1)(a), it is only as short hop therefrom to the conclusion that there is an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act in view of the judgment of the Supreme Court in S. G. Chemical's case (supra). ........." all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, the subject matter: being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the 13/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this ease has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute."
(emphasis supplied)
23. The aforesaid pronouncement thus indicates that nature of the dispute pending before the Tribunal or Authority assumes critical salience. If the change in the condition of service pertains to any matter connected with an industrial dispute before the Tribunal or Authority the interdict contained in Section 33(1)(a) would come into play. In the said case, since the industrial dispute revolved around conversion of the temporary employment into permanent, the Supreme Court held that the order of retrenchment of daily rated workmen was in contravention of the provisions contained in Section 33(1)(a) of the Act, 1947.
24. A useful reference can also be made to a judgment of this Court in the case of Dalanvalan (supra) wherein, after following Bhavnagar Municipality (supra), the learned Single Judge repelled the contention that retrenchment does not fall foul of 14/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC Section 33(1)(a) of the Act, 1947 and held that the justification of the retrenchment was wholly besides the point and irrelevant. The observations in paragraphs 7 and 8 are material and hence extracted below.
"7. The justification of the retrenchment of the concerned workmen is wholly besides the point and irrelevant. The question before the Industrial Court was not whether the workmen were justifiably retrenched, but whether their retrenchment amounted to breach of Section 33(1)(a) of the Industrial Disputes Act and consequently an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. This is the question considered by the Industrial Court on which a finding adverse to the petitioner has been recorded. This is the only adverse finding which the petitioner has impugned in the present petition. Despite the efforts of Mr. Soni to persuade me to hold that there was no change in the conditions of service of the workmen, as they continued to be temporary throughout and consequently there was no breach of section 33(1)(a), I am afraid, this question also is not res intergra in view of the judgment of the Supreme Court in (The Bhavnagar Municipality v. Alibhai Karimbhai and others), 1977 LIC 834. In the case before the Supreme Court, daily rated workmen of the Municipality had raised an industrial dispute. The subject matter of the dispute was connected with the conversion of the temporary workmen into permanent. During the pendency of this dispute, the Municipality removed the concerned workmen from service and the Supreme Court took the view that such tampering with status quo ante of those workers was a clear alternation of the conditions of their service and the alteration was in regard to a matter connected with the pending industrial dispute and thus there was contravention of Section 33(1)(a) of the Industrial Disputes Act. In view of the clear pronouncement of the Supreme Court on this issue, I decline to accede to the able arguments advanced by Mr. Soni touching this aspect of the matter.
8. In my view, the Industrial Court erred in law and misdirected itself in coming to the conclusion that there was no breach of section 33(1)(a) of the Industrial Disputes Act. The circumstances clearly showed that there was breach of section 33(1)(a) of the Industrial Disputes Act. Once the conclusion reached that there was breach of Section 33(1)(a), it is only as short hop therefrom to the conclusion that there is an unfair labour practice within the meaning of Item 9 of 15/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC Schedule IV of the Act in view of the judgment of the Supreme Court in S. G. Chemical's case (supra). ........."
25. In the light of the aforesaid enunciation of law, the nature of the industrial dispute, which was referred for adjudication to the industrial adjudicator assumes significance. I have noted that the first issue referred to the Tribunal by the Central Government was that whether the demands raised in strike notice and letter dated 17th October, 2021 including the demand of permanency in service were legal, fair and justifiable. The said dispute arose on account of the demand of the respondent Union that all the employees be granted continuation in service without resorting to the device like fixed term contract. It was the claim of the respondent Union that the appointment of the employees under fixed term contract was bad in law.
26. Prima facie, the question as to whether the employees were entitled to claim permanency, meaning thereby the conversion of the fixed term appointment into permanent one, was the subject matter of the industrial reference. Non continuation of the employees beyond 31st December, 2021 on the premise that their term came to an end thus prima facie constituted a disruption in the status quo ante reference to the Tribunal. It seems, prima facie, the petitioners could not have changed the 16/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC conditions of service without obtaining the permission of the Tribunal.
27. What exacerbates the situation, in the case at hand, is the discontinuation of engagement of the employee despite the order of the Tribunal to maintain the status quo. What was the nature and import of the undertaking, in the contemplation of the petitioners, may be debated. However, the fact remains that the Tribunal had ordered the petitioners to maintain the status quo till 4th January, 2022. In the face of the said order it was not open to the petitioners to disengage the services of 371 employees on the ground that their fixed term of appointment came to an end on 31 st December, 2021. In the aforesaid view of the matter, the impugned order to the extent it holds that the petitioners acted in breach of the undertaking cannot be faulted at if considered in the light of the restraint superimposed by the Tribunal that the petitioners shall maintain the status quo till 4th January, 2022. Any other view would have the consequence of undermining the binding efficacy of the orders passed by the Courts and Tribunals.
28. The criticism of Mr. Bapat that the learned Presiding Officer, CGIT-2, did not advert to the aspects of balance of convenience and irreparable loss is required to be appreciated in 17/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC the totality of the circumstances. The petitioners assert, in the affidavit dated 22nd November, 2022 that during the pre-Covid era they had about 522 flight operations per day. In the year 2021 it got reduced to 245 flight operations per day and it has further been reduced to 242 operations per day, with reduced number of Air-crafts. The frequency of the flights operated per day from Mumbai Airport has come down to 44 from 144, which was the case during pre-Covid period. According to the petitioners, there is no work available as concerned employees were primarily engaged in ground handling work and the same has since been entrusted to an agency which is authorized by AAI on principal to principal basis.
29. It could be urged that the impugned order lacks in refined articulation. However in the totality of the circumstances, the ultimate conclusion arrived at by the learned Presiding Officer cannot be faulted at. There is material on record to indicate that the employees were working for a number of years. Prima facie the claim of the petitioners that the employees were covered by exclusion Clause (bb) of Section 2(oo) of the Act, 1947 does not seem sustainable. The termination of their employment while the reference awaited adjudication before the Tribunal was clearly to the prejudice of the employees. This tilts 18/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC balance of convenience in favour of the employees. Thus denial of interim relief would cause irreparable loss to the employees.
30. Since the services of the employees were terminated during the pendency of the reference, the petitioners cannot be permitted to urge that the grant of interim relief would amount to granting a final relief. It was open to the petitioners to approach the Tribunal, before whom the reference was pending, if the petitioners desired to alter the status quo ante. Thus the submission on behalf of the petitioners that the impugned order could not have passed at an interim stage does not merit acceptance.
31. The contentions urged on behalf of the petitioners, however, deserve to be considered from the perspective of moulding relief. Thus, I am inclined to hold that in the peculiar facts of the case the interim order passed by the Tribunal is required to be modified to address the change in circumstances pleaded on behalf of the petitioners. The impugned order also deserves to be modified as regards the number of the employees to whom interim protection is required to be granted in view of the broad consensus that there were 371 employees who were disengaged with effect from 31st December, 2021. (Based on separate notes tendered on behalf of the petitioners and 19/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC respondent on 21st March, 2023 indicating the particulars of the concerned 371 workmen.) There is, however, a dispute as to how many of these employees have since resigned. The petitioners claimed 120 employees have resigned. For the respondent, only 74 workmen have resigned. Thus, the number of employees who would turn up in the event the petitioners offer employment is in the arena of uncertainty.
32. In view of the above, appropriate orders to provide an opportunity to the employees who have yet not resigned to stake claim for continuation of employment are required to be passed. Simultaneously, the petitioners are required to be given an alternative mechanism to make amends if the petitioners do not find themselves in a position to give employment to the employees who turn up for employment. The petition thus deserves to be partly allowed.
33. Hence, the following order:
:ORDER:
(I) The petition stands partly allowed in the following terms:
(A) The impugned order passed by the learned Presiding Officer, CGIT-2, Mumbai, dated 10 th January, 2022 stands modified as under:20/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 :::
4-WP1240-2022.DOC.DOC During the pendency of the reference before the CGIT,
(a) the petitioners shall continue to provide work to 60 employees or pay wages to them as undertaken before this Court in terms of the order dated 23 rd March, 2022.
(b) the employees, out of the rest of 371 employees, who have yet not resigned, shall intimate to the petitioners - first party either individually or through the respondent Union the second party, that they are willing to work with petitioner No.1 company, on or before 31st May, 2023.
(c) The petitioners shall provide work to the employees who have shown the willingness within the aforesaid period and pay wages and all benefits as per the terms and conditions of their employment, which existed as of 31st December, 2021, on or before 30th June, 2023.
(d) In the alternative to the Clause (c) above, the petitioners shall furnish bank guarantee to the extent of the amount of wages and all benefits to the employees, who have shown willingness to work with 21/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 ::: 4-WP1240-2022.DOC.DOC the petitioners, from the date of their termination till 30th June, 2023, to the satisfaction of CGIT-2, on or before 31st July, 2023, and continue to do so every year till the adjudication of the reference.
(e) The bank guarantee(ies) to be furnished by the petitioners shall be valid for the period of three months from the disposal of the reference.
(f) It is clarified that the employees who have already resigned shall not be entitled to the benefits under Clauses (c) or (d) above.
(II) By way of abundant caution, it is further clarified that the Tribunal shall decide the reference on its own merits and in accordance with law without being influenced by any of the observations made hereinabove.
(III) No order as to costs.
(IV) Rule made absolute in the aforesaid terms.
[N. J. JAMADAR, J.] 22/22 ::: Uploaded on - 03/05/2023 ::: Downloaded on - 04/05/2023 14:50:42 :::