Bombay High Court
Maharashtra General Kamgar Union vs J.K. Chemicals Limited, A Company ... on 8 January, 2004
Equivalent citations: [2004(101)FLR90], (2004)IILLJ798BOM
Author: S. Radhakrishnan
Bench: S. Radhakrishnan
JUDGMENT S. Radhakrishnan, J.
1. By this Petition, the Petitioner Maharashtra Judgment dated 19th January, 1989 passed by the Respondent No. 2 - the Presiding Officer, 1st Labour Court, Maharashtra, Bombay in the Reference (I.D.A.) No. 12 of 1983.
2. The brief facts are that the Respondent No. 1 Company which used to engage in the business of manufacturing of industrial chemicals used to employ over 1000 workmen. According to the Petitioner Union the management of the Company did not share the prosperity with the workmen who constituted an important factor in the achievement of the said prosperity in the business, as a result of which the wages of the workmen and their conditions of service remained poor. Ultimately the workmen joined the Petitioner Union for effective representation with a view to improve their service conditions. To protest against the harassment and pressurising tactics of the management the Petitioner Union held a gate meeting on 16th January, 1981 at which one of the workmen Mr. Suresh Gije gave a speech. The management thereafter issued the chargesheet dated 16th June, 1981 to the said Mr. Suresh Gije on the ground that he made a procative and inflammatory speech at the gate of the factory, and the management suspended him with effect from 16th January, 1981. Thereafter, it appears that the workmen adopted "stay-in strike", i.e., the workmen used to enter the factory premises, however, decided not to carry out any work. This went on for nearly 10 days and thereafter, on 27th June, 1981 the management refused entry to the workmen into the factory to work, unless they signed an undertaking already prepared & kept ready at the gate. The workmen however, did not agree to sign any undertaking as demanded by the management and consequently the management did not allow any workmen to enter the factory for work. Thereafter the management approached the Labour Court by way of a reference under Section 25 of the MRTU & PULP Act and obtained a declaration on 17th July, 1981 that the workers had resorted to an illegal strike by not giving the requisite notice under the said Act. Thereafter, on 18th July, 1981 when the workers sought to enter the factory premises for work, the management did not allow them to enter the factory premises unless and until they sign the undertakings as desired by the management. Again on 29th August, 1981 the workmen sought to enter the factory premises, however, the management again insisted on signing the said undertaking, to which the workmen refused. Thereafter on 9th October, 1981 the management of the Respondent No. 1 Company sent individual letters to the workmen to report for work, however none of the workmen who received the letters reported to work. In the said letters it was made clear that if they fail to report., their services will be terminated. On 19th October, 1981 the management of the Respondent Company was constrained to dismiss the workmen from service on the ground that the workmen had resorted to an illegal strike which is a misconduct under Standing Order 24(c) of the Model Standing Orders. The Petitioner Union in that behalf had raised an industrial dispute and sought the reinstatement of the workmen with back wages. The matter was referred to the Labour Court by way of Reference by the State Government. In the said reference, finally, the aforesaid Award and Judgment dated 19th January, 1989 was passed, which is impugned in this Petition. By the said Award the reference regarding disputes of workmen whose claims were settled during the pendency of reference was rejected. As far as workmen who had not settled their claims, their claims were partially allowed whereby the Respondent Company was directed to pay their legal dues and compensation equal to three months average pay and Rs. 500 each by way of costs. The Respondent Company was directed to give preference in employment to the workmen involved in the reference as and when the company re-starts.
3. Mr. Ganguli, the learned Counsel for the Petitioner Union has raised various ground challenging the said Award. Firstly, he has contended that the said Award does not adjudicate the dispute between the workmen and the management, and as such, the Award is bad in law. He also contended that the Labour Court ought to have allowed the said Reference and ought not to have rejected the same. Secondly, the learned Counsel Mr. Ganguli has challenged the said Award on the ground that it was an illegal lockout by the management of the Respondent Company and there was no question of an illegal strike by the workmen. He also emphasised that asking the workmen to sign the undertaking as a condition precedent for reporting to work, would amount to an illegal lockout.
4. It is the contention of Mr. Ganguli the learned Counsel for the Petitioner Union that the workmen had not committed any misconduct as alleged by the management of the Respondent Company in the dismissal orders dated 19th October, 1981. He also emphasised that the Labour Court after holding the dismissal of the workmen to be bad in law ought to have granted reinstatement of the workmen with full backwages, or if the reinstatement was not possible, the Labour Court ought to have granted adequate compensation. Mr. Ganguli also contended that before passing the dismissal orders, no workman was issued with any chargesheet and that there was no enquiry held in respect of the alleged misconduct against them. It is the contention of Mr. Ganguli that the employer - Respondent Company did not lead any evidence before Labour Court to justify the said dismissal.
5. According to Mr. Ganguli the aforesaid dismissal of the workmen by the management of the Respondent company is contrary to the provisions of Section 33(2) of the Industrial Disputes Act, as the Respondent Company did not obtain prior approval of the Industrial Tribunal for the said punitive action against the workmen.
6. Mr. Ganguli, with regard to his contention that the Labour Court did not adjudicate the dispute between the workmen and the management, has referred to and relied upon the judgment of the Hon'ble Supreme Court in the case of Cox and Kings (Agents) Limited v. Workmen - (1977) 1 L.L.J.471. In the said judgment, the Supreme Court has referred to its earlier judgment in the case of Technological Institute of Textiles v. Its Workmen and Ors. - 1952 II L.L.J.149. The Supreme Court has observed that if there was no proper settlement between the parties, the Labour Court or the Industrial Court ought to adjudicate the dispute. in that case there was no agreement and the demands were withdrawn, as such the Supreme Court held that there was no settlement and the matter required adjudication afresh.
7. Mr. Ganguli the learned Counsel for the Petitioner Union thereafter referred to another judgment of the Madhya Pradesh High Court in the case of Sital Sukhiram v. Central Government Industrial Tribunal Cum Labour Court, Wright Town, Jabalpur and Ors. - 1969 Lab.I.C. 1207. In fact in the aforesaid judgment the Madhya Pradesh High Court has held that the Labour Court can adopt the compromise entered into between the parties as the foundation of the Award after considering whether it is a air and just settlement of the dispute.
8. In support of his contentions regarding the undertaking, Mr. Ganguli the learned Counsel for the Petitioner Union also referred to and relied upon the Division Bench judgment of our High Court in the case of Vamen Maruti Gharat and Ors. v. M.S. Apte and Ors. - 1998 (III) L.L.J.(Supp.) 603. In the said judgment, the Division Bench has referred to the decision in the case of Industrial Tubes Manufacturing Co. Ltd. v. S.R. Sawant, Judge, Industrial Court and Ors. and has quoted the undertaking sought tin the Industrial Tubes Manufacturing Co. Limited's casein the following language:-
"I am willing to terminate the strike and resume duties forthwith. Upon resumption of work I am willing to perform my duties sincerely and diligently and contunue to give mormal output, observe normal discipline whilst on duty. I, therefore, request you to permit me to resume work."
While interpreting the aforesaid undertaking the Division Bench has held that the aforesaid undertaking does not amount to workmen admitting the strike to be illegal and the undertaking was only an assurance that they will act in accordance with the terms of the employment and such an undertaking was held not to be bad in law.
9. Mr. Ganguli, the learned Counsel for the Petitioner Union thereafter referred to the facts in the case of Vaman Maruti Gharat and Ors. v. M.S. Apte and Ors. - 1988 II C.L.R.222. In this case the undertaking was construed to be illegal as the undertaking contemplated a clear confession that the strike to be illegal.
10. Mr. Ganguli thereafter referred to another judgment in the case of Premier Automobiles Ltd. and Ors. v. G.R. Sapre and Anr., - 1979 (39) F.L.R.440 in support of this contention that the employer had adopted an illegal lockout Mr. Ganguli thereafter referred to the recent judgment of the Hon'ble Supreme court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v Shri Ram Gopal Sharma and Ors.- 2002 I C.L.R.789. The above judgment was dealing with the mandatory provision of Section 33(2)(b) of the Industrial Disputes Act, 1947.
11. Mr. Ganguli, learned Counsel for the Petitioner Union, in support of his contentions also referred to and relied upon another judgment of the Supreme Court in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. - , wherein the Hon'ble Supreme Court has held after referring to its various earlier judgments that mere taking part in an illegal strike and not reporting back to work by themselves may not amount to a misconduct.
12. Mr. Ganguli, the learned Counsel for the Petitioner Union also referred to and relied upon the judgment of the Supreme Court in the case of V.B. Rao v. Steel Authority of India Limited and Anr. - wherein it is held that in lieu of reinstatement, proper compensation ought to be awarded.
13. Mr. Ganguli also referred to and relied upon the judgment of the Supreme Court in the case of S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Limited and Anr. - 1986 L.L.J. Supreme Court 490 wherein it is held that retrenchment compensation paid already can be adjusted towards full wages.
14. Finally, Mr. Ganguli referred to and relied upon the judgment of the Supreme Court in the case of O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors. - wherein it was held in the facts and circumstances of that case that a salary for a period of 3.3 years was an adequate compensation in lieu of reinstatement.
15. It is the contention of Mr. Ganguli the learned Counsel for the Petitioner Union that the Award passed by the Labour Court did not adjudicated the claim of the workers and hence the same ought to be held bad in law. According to him the workmen were dismissed without any enquiry and the employer Company did not seek any prior permission under Section 33(2)(b) of the Industrial Disputes Act and hence, the impugned Award and Judgment be quashed and set aside and the employees of the Petitioner Union ought to be reinstated with full backwages.
16. Mr. C.U. Singh, the learned Counsel for the Respondent No. 1 Company contended that there is nothing wrong in the impugned Award and Judgment and in that behalf he took me through the affidavit in reply of Mr. A.S. Kapoor filed on behalf of the Respondent No. 1 company. from the said reply it is apparent that the Respondent No. 3 Union had entered into a settlement with the employer during the pendency of the reference before the Labour Court, whereby 704 employees had fully settled their claim and had accepted the compensation and left the services of Respondent No. 1 and only the five employees had not accepted the settlement. It may be also noted here that none of the 704 employees who have already accepted the settlement are making any grievance before this Court that the settlement was not fair and just, and even the five employees who have not accepted the settlement are not coming to this Court for making any claim. Mr. Ganguli also fairly stated that his client being the Petitioner Union could not secure even a single employee to come before this Court to make any claim that the settlement arrived at was against their interest. Mr. Singh, the learned Counsel for the Respondent No. 1 Company therefore contended that there is nothing wrong on the part of the Labour Court accepting the settlement to be fair and just and accordingly passed the Award. Shri Singh therefore contended that there is no necessity on the part of the Labour Court to adjudicate when the employees and the employer have mutually settled the same and had acted upon the same fully. Mr. Singh, the learned Counsel for the Respondent No. 1 Company has contended that there was no need to hold any enquiry in the facts and circumstances of the present case, inasmuch as the strike adopted by the employees was declared to be illegal by the Labour Court by its order dated 17th July, 1981. Even thereafter the employees of the Petitioner Union had continued with the "stay-in" strike and in view of the provisions of the Standing Orders the same clearly amounted to a mis-conduct. In fact when the employer called upon them to report back and none of them responded and none of them reported to work. In view thereof, the Respondent No. 1 Company had no other alternative but to terminate the services of the employees. Mr. Singh also emphasised that there was no dispute that the strike was declared to be illegal by a competent Court.
17. Mr. Singh the learned Counsel for the Respondent No. 1 Company has pointed out that some of the employees who were on leave, after expiry of the said leave also did not come and report for work, but continued with the strike.
18. With regard to the issue of non-adjudication in the aforesaid Award in view of the settlement, Mr. Singh, the learned Counsel for the Respondent No. 1 Company has strongly referred to and relied upon a recent judgment of this Court in Writ Petition No. 3002 of 1999 in the case Shri Shaukat Ali and Anr. v. Economic Engineering Corporation and Ors. dated 25th June, 2003, wherein this Court has clearly come to the conclusion that in case of a fair and just settlement between the parties during the pendency of Reference before the Industrial Court or Labour Court, there is no need for the Industrial Court or the Labour Court to adjudicate. In that context, the observations of the Hon'ble Supreme Court in the case of State of Bihar v. Ganguli (D.N.) and Ors. - 1958 (2) L.L.J.634 while dealing with an issue as to whether the Government can supersede the reference once made and pending for adjudication before the Tribunal constituted for that purpose, would be relevant:-
"It is true that the Act does not contain any provision specifically authorizing the industrial tribunal to record and compromise and pass an award in its terms corresponding to the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. But it would be very unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary objects of this Act. Settlements reached before the conciliation officers or boards are specifically dealt with by Sections 12(2) and 13(3) and the same are made binding under Section 18. There can therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties."
19. The learned Counsel Mr. C.U. Singh for the Respondent No. 1 Company has contended that in the instant case, the Petitioner could not point out that the settlement was unfair and unjust, and in fact not a single workman has come before this Court complaining about the said settlement. Mr. Singh has therefore contended that if during the pendency of the dispute before the Industrial Court or the Labour Court, the parties have arrived at a settlement and after scrutiny of the said settlement the Industrial Court or the Labour court finds the same to be fair and just, there is no necessity on the part of the Industrial Court or the Labour Court to thereafter adjudicate the same.
20. Mr. Singh, the learned Counsel for the Respondent No. 1 Company thereafter referred to and relied upon the judgment of the Hon'ble Supreme Court in the case of Model Mills Ltd. Nagpur v. Dharamdas and Ors. - 1958 L.L.J. Supreme Court 539, wherein the Hon'ble Supreme Court has held the Respondents who had gone on a illegal strike were rightly dismissed by the Appellant Company. He therefore submits that in the instant case also, as the Labour Court had held the strike to be illegal, the dismissal of the said workmen by the Respondent No. 1 Company was right. In the above judgment the Supreme Court has clearly held that if going on an illegal strike were to be a misconduct, then the dismissal was held to be proper.
21. Mr. Singh, the learned Counsel for Respondent No. 1 Company also referred to the another judgment of the Supreme Court in the case of Oriental Textile Finishing Mills, Amritsar v. Labour Court, Jullundur and Ors. - 1971 L.L.J. 505, wherein the Supreme Court has clearly held that the Tribunal was not justified in directing the reinstatement and payment of wages to the workers merely on the ground that no domestic enquiry was held. In the above case, in an almost similar situation as in this case, the Hon'ble Supreme Court has observed in Paragraph No. 12 as under:-
"The learned advocate for the respondents however urges that even where the strike is illegal in order to justify the dismissal or the order terminating the services of workmen on the ground of misconduct the management must prove that they were guilty of some overt acts such as intimidation, incitement or violence. We do not think that in every case the proof of such overt acts are a necessary prerequisite. In this case there is a persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management has done everything possible to persuate them and give them opportunities to come back to work but they have without any sufficient cause refused, which in our view would constitute misconduct and justify the termination of their services."
22. Mr. Singh, the learned Counsel for the Respondent No. 1 Company also referred to and relied upon the order of the learned Single Judge of this Court (Bharucha J. as he then was) delivered in the case of The Maharashtra General Kamgar Union v. Jaihind Oil Mils Co. and Anr. in Writ Petition No. 191 of 1983 wherein this Court has held that when the Respondent Company proved before the Tribunal that the workmen whose services were terminated stayed away from work during the illegal strike, no further proof of individual guilt is required. Thereafter Mr. Singh, the learned Counsel for the Respondent No. 1 Company also referred to and relied upon the Division Bench judgment of this Court in the case of Industrial Tubes Manufacturing Co. Ltd. v. S.R. Samant and Anr.- 1981 LAB.I.C. 379 wherein this Court has held that the employer insisting on the workmen to execute good conduct bond before the workmen joining the duties would not amount to unfair labour practice or an illegal lockout.
23. Mr. Singh, the learned Counsel for the Respondent No. 1 Company thereafter referred to and relied upon the judgment of this Court in the case of The Bombay Dyeing & Mfg.Co.Ltd. and Ors. v. Mumbai Mazdoor Sabha and Ors. - 1986 II C.L.R. 242 wherein this Court has held as under:-
"Even assuming that the workmen have not indulged in violence and indiscipline, still the employer has right to tell the workmen not to enter the premises in case the workmen had made it clear that they had no intention to carry out their duties. The work premises are not to be used by the workmen as a matter of right even though the workmen had no intention to carry out the work."
24. Mr. Singh, the learned Counsel for the Respondent No. 1 Company thereafter referred to and relied upon the judgment of the Hon'ble Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan and Ors. - , wherein the Hon'ble Supreme Court has dealt with the limits of the jurisdiction of the High Court in issuing a writ of certiorari. The Supreme Court has held that the Court exercising the writ jurisdiction is not entitled to act as an appellate Court. The Supreme Court has observed that the finding of facts reached by the inferior court or Tribunal, as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. Referring to the aforesaid judgment of the Supreme Court, Mr. Singh the learned Counsel for Respondent No. 1 Company has contended that in the instant case also this Court ought not to sit in judgment and reappreciate the facts and evidence which was before the Labour Court.
25. Thereafter, Mr. Singh, the learned Counsel for Respondent No. 1 Company referred to and relied upon the judgment of the Hon'ble Supreme Court in the case of Dharamarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Anr. - (1991) 7 Supreme Court Cases 332, wherein it is held that if inspite of opportunity being given no worthwhile explanation is forthcoming then it would not be a fit case to interfere with the termination order. Mr. Singh, the learned Counsel for the Respondent No. 1 Company has therefore contended that in the instant case inspite of the notice being sent to individual workmen, none of them had reported to work and none of them had given any reply, when it was clearly stated in the said notice that if they did not report back to work, it would be construed as mis-conduct on the part of the workmen and that their services would be terminated.
26. Mr. Singh, the learned Counsel for the Respondent No. 1 Company thereafter referred to and relied upon the judgment of the Division Bench of this Court in the case of Aurobrite (India) Pvt. Ltd. v. Shankar Genu Kelkar and Ors.- 1994 (I) CLR 840 wherein the Division Bench of this Court has held that the Labour Court and the learned Single Judge have concurrently found that the model standing orders applicable to the employees clearly enable the employer to terminate the services as a simple discharge, if that be so, then there was nothing wrong in the said termination.
27. Relying upon the aforesaid judgments of the Supreme Court as well as this Court, Mr. Singh, the learned Counsel for Respondent No. 1 Company has submitted that there is no necessity to adjudicate by the Industrial Court or the Labour Court when between the employer and the employees there is a settlement during the pendency of the Reference, and hence there was nothing wrong in the aforesaid judgment of the Labour Court. Mr. Singh has contended that in the instant case, there was no question of holding any enquiry inasmuch as the workmen had gone on an illegal strike and when the strike was specifically declared to be illegal by the Labour Court and the workmen had wilfully refused to resume for work inspite of notice. He has contended that the provisions of Section 33(2)(b) of the Industrial Disputes Act will not be applicable in the instant case as the workmen themselves had arrived at a mutual settlement, and in view thereof, the said provisions of Section 33(2)(b) for seeking prior permission to terminate the services of the workmen would not arise.
28. Mr. J.P. Cama, the learned Counsel appearing for Respondent No. 3 - Chemical Kamgar Union, has strongly supported and adopted the arguments of Mr. C.U. Singh the learned Counsel appearing on behalf of the Respondent No. 1 Company.
29. Having considered the arguments of both sides, the main objection of Mr. Ganguli, the learned Counsel for the Petitioner Union that the Award of the Labour Court does not adjudicate the claim of the workmen and that merely passing of the Award and Judgment based on the settlement was contrary to law, cannot be accepted specifically in the light of aforesaid judgment of the Hon'ble Supreme Court in State of Bihar v. Ganguli (D.N.) and Ors. and also in view of the judgment of learned Single Judge of this Court in Shri. Shaukat Ali and Anr. v. Economic Engineering Corporation and Ors. wherein it is held that in case of settlement arrived at between the employer and the employees there is no necessity on the part of the Industrial Court or the Labour Court to adjudicate thereafter, inasmuch as there is no dispute left, and hence there is no question of adjudicating any further.
30. The second ground of attack by Mr. Ganguli, the learned Counsel for the Petitioner Union is with regard to the undertakings sought from the employees before they resume the work. The wording in the said undertaking is rather innocuous and it does not cast any stigma on the workmen/employees. The said undertaking cannot be construed as illegal or coercive, in the light of the judgment of the High Court which was referred to and relied upon, especially the Division Bench Judgment of our High Court in Industrial Tubes Manufacturing Co. Ltd. v. S.R. Sawant, Judge, Industrial Court and Ors.
31. So far as the issue of seeking prior permission from the Labour Court under Section 33(2)(b) of the Industrial Disputes Act for dismissing the workmen, it will not be applicable in the instant case, inasmuch as the parties themselves had mutually arrived at an amicable terms of settlement and had taken away their compensation and they are not even appearing before this Court challenging the said settlement. In fact, Shri Ganguli fairly conceded that as of today not even a single workman has come forward complaining about termination or settlement. In view thereof, the said issue of seeking prior permission under Section 33(2)(b) is purely an academic one and I find no substance in it.
32. I do not find anything patently illegal, arbitrary, perverse or any jurisdictional error in the impugned Award and Judgment passed by the Labour Court. Writ Petition is totally devoid of any merits and hence, the same stands dismissed, however with no order as to costs.
33. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary or the Section Officer/Associate.