Bombay High Court
Premier Automobiles Ltd. vs Pal Vrs Employees Welfare Association ... on 3 October, 2001
Equivalent citations: [2002(92)FLR142], (2002)ILLJ527BOM
Author: P.V. Kakade
Bench: P.V. Kakade
JUDGMENT P.V. Kakade, J.
1. The petitioner has preferred this writ petition against the Order dated January 17/20, 1998, passed by the Presiding Officer, 7th Labour Court, Mumbai, in Application (IDA) No. 327 of 1995, directing the petitioner to pay the members of the 1st respondent the amount of arrears appearing against the name of each member in Annexure 'A' to the said application and further directing to pay the interest at the rate of 12% per annum from the date of filing of the application before the Court, under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter called as the said Act).
2. I have heard the learned counsel for both the sides. Perused the entire record, including the affidavit-in-reply and documents, annexed to the petition.
3. The facts giving rise to the petition, in brief, are thus:
The petitioner is a Company incorporated, as Public Limited Company under the Companies Act and is engaged in the manufacture and sale of automobiles and ancillaries at its factory located at Kurla, Mumbai. The 1st respondent is an association. registered under the Societies Registration Act, 1860 as well as Bombay Public Trust Act, 1950 comprising of ex-employees of the petitioner-company, who voluntarily retired from the services of the petitioner in the year. 1992.
On November 26, 1995, the 1st respondent filed an application under Section 33-C(2) of the said Act, on behalf of 50 ex-employees of the petitioner-company who voluntarily retired in the months of January, February, April and May 1992 in response to a Scheme for Voluntary Retirement announced by the company on December 20, 1991 and March 24, 1992. Under the said Scheme, which had a consent of the Association of Engineering Workers, which was a recognized Trade Union associated with the factory of the petitioner, two options were given to the employees known as "Pension Scheme 'A' with Full Pension" and "Pension Scheme 'B' with 1/3rd Commutation and balance 2/3rd Pension". The said ex-employees by their letters sought voluntary retirement from the services of the petitioner-company by issuing letters and resignations which were accepted and duly communicated to all the said ex-employees. All of them received payment in full and final settlement of their dues against the company.
The letters of acceptance of Voluntary Retirement Scheme issued by all the said ex-employees clearly stated that they would cease to be in the employment of the company effective from the dates mentioned in their letters of acceptance. They were paid pension under the respective schemes as per their option.
4. The workmen of the petitioner who were represented by the Union registered under the Trade Unions Act, viz. Association of Engineering Workers, submitted a charter of demands on April 24, 1991 as the previous settlement had expired on December 31, 1990. On September 8, 1994, the said Union and the petitioner arrived at a settlement in the course of conciliation proceedings. The parties to the settlement explained the reasons for delay in entering into the settlement. The said association of workers was quite aware of the Voluntary Retirement Scheme and in spite of the same decided to give the benefits only to the workmen in employment as on September 8, 1994. The said settlement conferred various benefits and privileges on workmen who were on the rolls of the petitioner-company on the date of signing of the settlement. The said benefits and privileges were subject to the Union and workmen agreeing to co-operate to increase the production as mentioned therein. The said settlement, by Clause 16 thereof provided that the company shall pay certain additional payment ranging from Rs. 26,260/- to Rs. 38,715/- depending upon the length of service and the said payment was payable to all the permanent workmen who were on the rolls of the company as on the date of signing of the settlement dated September 8, 1994. The said additional payment was paid in five instalments alongwith the wages for the months of September 1994 to January 1995 and it ceased to be payable from February 1995. The said agreement was applicable to those workmen, who were in employment as on September 8, 1994.
5. The 1st respondent, purporting to represent the ex-employees who had voluntarily retired from the services of the petitioner- company, sent a letter through its advocate dated September 28, 1995, demanding payment of alleged arrears under Clause 16 of the Settlement dated September 8, 1994 alleging, inter alia, that the said ex-employees were benefited under the Settlement dated September 8, 1994. The petitioner replied to the said letter denying the allegations contained therein, clarifying that the employees who had retired voluntarily from the services of the petitioner were not entitled to the claims made in view of the specific terms contained in the Settlement dated September 8, 1994. The 1st respondent thereafter filed an application under Section 33-C(2) of the said Act, claiming benefit under Clause 16 of the Settlement dated September 8, 1994, It was contended by the 1 st respondent that it was representing the persons listed in the annexure to the application, who are members of the applicant and were enjoying the benefit of the Voluntary Retirement Scheme. It was averred by the 1st respondent that the said ex-employees who were enjoying the benefits of the Voluntary Retirement Scheme were still in the employment of the petitioner, as the Association of the Engineering Workers had submitted a charter of demands on April 24, 1991 the benefit extended by virtue of the said charter of demands after negotiations through the Settlement dated September 8, 1994 and as such were entitled to their arrears under Clause 16 of the said Settlement. It is further alleged by the 1st respondent that the members of the 1st respondent were deliberately deprived of the benefits arising out of the said Settlement. According to respondent No. 1, the Voluntary Retirement Scheme Clause 9 had been provided to the effect that those employees who had separated under the Voluntary Retirement Scheme, would also be eligible for pro-rata arrears payment. On such and other grounds the claim was made before the Presiding Officer of the Labour Court.
6. The Presiding Officer, Labour Court heard the parties and on the basis of evidence came to the conclusion that the ex-employees were entitled to the benefit of the Settlement dated September 8, 1994 and as such passed the impugned Order. Hence, the present Writ Petition.
7. At the outset, Mr. P. Ramaswami, the learned counsel for the petitioner, raised an initial objection in respect of the locus standi of respondent No. 1 to file application under Section 33-C(2) of the said Act before the Labour Court. According to him, respondent No. 1 was neither a recognised Trade Union nor a body recognized under the said Act and as such was not entitled to act in the representative capacity. The record shows that respondent No. 1 is titled as the PAL VRS Employees Welfare Association and is registered under the Societies Registration Act as well as Bombay Public Trust Act. According to the record, the said Association is formed specifically to prosecute the claim which is involved in these proceedings. Mr. C.J. Sawant, the learned counsel for respondent No. 1 vehemently urged that respondent No. 1 has locus standi to agitate the cause because the Association itself was formed for the purpose. Moreover, he placed reliance on the provision of Rule 67 of the Rules framed under the said Act, which makes it clear that "group of workmen" would be allowed to make representation. He also sought to place reliance on the ruling of the Supreme Court in the case of D.S. Nakara and Ors. v. Union of India, , wherein it is observed that any member having sufficient interest in the cause can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the laws and seek enforcement of such public duty and observance of such constitutional or legal provision. If we apply this ratio to the present proceedings, then it must be held that respondent No. 1 has locus standi to agitate the cause under said Act.
8. The moot question around which the entire case revolves is whether the benefit of Settlement dated September 8, 1994 arrived at between the petitioner and its workmen, who were members of the recognized Union in the said factory, could be extended to the members of the 1st respondent who were no more in the service and had opted for Voluntary Retirement Scheme as early as in the year 1992 i.e., two years prior to the said Settlement. The contents of the Voluntary Retirement Scheme notice in respect of Scheme 'A' as well as Scheme 'B' give details of the Scheme. The terms and conditions of the said Scheme are clear enough which show that the employees who opted for Voluntary Retirement Scheme were to be considered as relieved from services of the company within a week from the date of their letter of acceptance. According to the said Scheme, it would come into force with effect from December 20, 1991 and stood open till January 27, 1992. Clause 12 of the terms and conditions of the said Scheme further make it clear that after acceptance of the Voluntary Retirement Scheme the employees will be eligible for the pension amount only and pension will not attract any other benefits. Thereafter the said ex-employees categorically accepted the Scheme. In the said Scheme Clause 9 stipulated that the employees who opted for Voluntary Retirement Scheme would be eligible for pro-rata arrears of payments for the period upto January 27, 1992 arising out of any settlement reached hereafter. Those separated under Voluntary Retirement Scheme will also be entitled for this. However, this would have no effect on the lumpsum/pension amount arrived at on the basis of the formula as mentioned in Clause 3 of the said Scheme. This clause is the bone of contention amongst other aspects. Clause 16 of the Settlement dated September 8, 1994 makes provision for additional payment by providing that it is agreed by both the parties that the company shall pay an additional payment as shown in the table to all the permanent workmen who were on the roll of the company as on the date of signing of the Settlement. Thus, Clause 16 of the Settlement made it clear that the said additional payment was to be made only to those who were permanent workmen as on September 8, 1994 i. e. the date of signing of the Settlement and for no other people. It is the contention of respondent No. 1 that Clause 9 of the Voluntary Retirement Scheme is linked to Clause 16 of the Settlement and, therefore, they are entitled to the benefit of Clause 16 of the Settlement regarding additional payment. Clause 9 of the Voluntary Retirement Scheme states that employees opting for Voluntary Retirement Scheme would also be eligible for pro-rata arrears of payment for the period "upto January 27, 1992" reached hereinafter. The true import of Clause 9 of the Voluntary Retirement Scheme, in my view, would be that the said ex-employees would be entitled to pro-rata arrears of payment upto January 27, 1992 arising out of Settlement, if any, made specifically with regard to, and taking into account the said ex-employees who had availed of the Voluntary Retirement Scheme, and not otherwise. In other words, Clause 16 of the Settlement clearly precludes those who are no more in the employment because they have opted for Voluntary Retirement Scheme and benefits thereunder. It would not be out of place to note here that members of respondent No. 1 opted for VRS in 1992 with full knowledge that charter of demands was made in the year 1991, and it was due for consideration. It was urged on behalf of respondent No. 1 that for the purpose of this aspect, the said ex-employees under the Voluntary Retirement Scheme are still workmen within the meaning of Section 33-C(2) of the said Act. Section 33-C(2) of the said Act reads thus:
"Section 33-C(2) - Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months).
Therefore, it is clear that benefit of Section, 33-C(2) of the said Act would be available only for those who were considered as workmen. In other words, it would not be available to both who are ex- employees and had availed of the benefits and full payments under the Voluntary. Retirement Scheme. The definition of 'workman' vide Section 2(s) of the said Act reads thus:
"Section 2(s) - "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of. 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison;
or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
The learned counsel for the petitioner sought to place reliance on the judgment of the Kerala High Court in the case of Everestee v. District Labour Officer, reported in 1999-II-LLJ-851 (Ker- DB). In my considered view, the observations made thereunder aptly apply to the present case. It is observed that a person who has tendered his resignation pursuant to the Voluntary Retirement Scheme offered by the management and has received all the benefits arising out of such resignation cannot be treated as a "workman". After his voluntary separation from the relationship with the management as a workman, he, cannot claim to be a 'workman' within the meaning of Section 2(s) of the said Act. The Kerala High Court has taken a consistent view in this regard in the subsequent and latest case in the case of Purandaran v. Hindustan Lever Ltd. reported in 2001-II-LLJ-52 (Ker) wherein it is observed that the employees who had opted the Voluntary Retirement Scheme introduced by the respondent-company which tantamounts to resignation are not entitled to claim status of 'workman' for the purpose of Section 2(s) of the said Act. I fully subscribe with this view taken by Kerala High Court. To counter this argument, Mr. C.J. Sawant, the learned counsel for respondent No. 1 referred to the ruling of the Supreme Court in the case of National Buildings Construction Corporation Ltd. v. Pritam Singh Gill and Ors. . He invited my attention to the contents of para 7 of the said judgment which elaborates the purpose and object behind Section 33-C of the said Act. It is observed that this Section was enacted for the purpose of enabling individual workmen to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing Court so that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the Section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. In my considered view, there cannot be two opinions about the objects and purpose behind Section 33-C of the said Act as enumerated by the Apex Court in the said judgment. However, it must be noted that the Apex Court has given emphasis on the term "existing individual rights" while mak-ing this observation. Therefore the moot question before us is whether the said ex-employees have any "existing individual rights" when they moved the application under Section 33-C(2) of the said Act. The clear answer in my considered view is emphatic 'no'. This is quite obvious from the terms and conditions of the Voluntary Retirement Scheme opted by the said individual ex-employees and hence, I hold that the said members of respondent: No. 1 are neither the workmen as contemplated under Section 2(s) of the said Act, nor there is any "existing individual rights", vested in them qua the petitioner's case admittedly they have parted permanently from their employment by obtaining all the benefits and payments of final settlement under the scheme.
9. It was urged on behalf of respondent No. 1 that the recognized Trade Union had presented a charter of demands on April 24, 1991, but it was deliberately kept pending till Voluntary Retirement Scheme was accepted by the members of respondent No. 1. It was further urged that once the said employees parted with retirement benefits then the settlement was arrived at. In my view, this argument is devoid of any merits mainly for the reasons that the settlement itself has given details as to why consideration of charter of demands was delayed. Secondly, it cannot be conceived that the petitioner-company would deliberately delay consideration of the charter of demands and to reach settlement only to deprive 50 and odd employees of its benefit, when hundreds of workers were given benefit thereof.
10. For the reasons recorded above, I have come to the conclusion that the members of respondent No. 1 are not entitled to the benefit under the Settlement dated September 8, 1994, reached between the recognized Trade Union and the Petitioner as the said ex-employees had opted for Voluntary Retirement and, therefore, were not entitled to invoke the provision of Section 33-C(2) of the said Act.
11. In view of the above, the petition is allowed and rule is made absolute.
12. Parties to act on the copy of this order duly authenticated by the Associate of this Court.