Bombay High Court
Blue Star Ltd. vs Blue Star Workers Union And Anr. on 25 August, 1993
Equivalent citations: (1995)ILLJ138BOM
JUDGMENT A.V. Savant, J.
1. Heard both the learned Counsel, Shri Cama for the petitioner and Shri Deshmukh for the first respondent-Union.
2. The petition seeks to challenge the interim order dated 23rd July, 1993 passed by the Industrial Court, Bombay, below Exhibit U-2 in Complaint (ULP) No. 702 of 1993. Under the impugned interim order, the petitioner Company has been restrained from retiring the concerned employee Krishna Hedulkar. The Company has been further directed to permit Krishna Hedulkar to report on duty and to pay him regularly his wages. The complaint has been expedited, to be decided within a period of 6 months. A few facts may be stated as under.
3. Krishna Hedulkar has been employed with the petitioner Company since 1st August, 1968. He has so far put in 25 years of service and his age is only 48 years. He is fit to work. The age of superannuation is 60 years. There is no domestic inquiry pending against him, much less is he facing any threat of dismissal. Hedulkar who is employed as an ordinary helper is stated to be educated upto 9th standard only and has a wife and three sons dependent upon him. His salary works out to Rs. 4,000/- per month approximately and the carryhome salary is approx Rs. 3,500/- p.m. On the 17th May, 1993 when he reported for duty, he is alleged to have met Shri Knshnamurthy, the Assistant Manager of the Company, who is alleged to have communicated the Early Voluntary Retirement Scheme to him. A writing has been obtained from Hedulkar between 9.00 and 9.45 A.M. on 17th May, 1993 which is in English. The writing opens with the statement that Hedulkar has understood the Early Voluntary Retirement Scheme communicated to him. It is admitted before me that no prior notice was given of the said Scheme, in the sense that it was not put up on the Notice Board nor communicated to the Union. The writing then shows that Hedulkar agreed to voluntarily retire and to accept Rs. 2,50,000/-, As stated earlier, he has as many as 12 years of service to go and his salary was approximately Rs. 4,000/- per month. Below the English writing, he has scribbled in Marathi that he was explained the contents in Marathi and has understood the same. In the afternoon of 17 May, 1993 itself Hedulkar was called to the Manager's Office where he was paid the amount of Rs. 2,50,000/- by cheque plus Rs. 2075/- representing his salary for 17 days of the month of May, 1993 and Rs. 50/- towards the refund of Income-Tax which was wrongly deducted. 4. On the 18th May, 1993 when Hedulkar reported for duty, he submitted an application in Marathi, which was prepared by him on the 17th May, 1993 itself. The said application is eloquent. It sets out how Shri Knshnamurthy took him to the cabin of Shri Govind Advani and coerced him to sign the papers relating to voluntary retirement. He categorically states that he was desirous of continuing in service since he has a good record and there was no use his accepting Rs. 2,50,000/- in view of the premature retirement, sacrificing 12 years of service. He complained that he was not even allowed to go out to have a glass of water and he was threatened that if he did not accept the voluntary retirement scheme, he would lose his job and if he went to the Court, it will take years and he will get nothing. Rather than do this, he was coerced to accept Rs. 2,50,000/-. This complaint of Hedulkar has been replied by the Company as late as on 24th May, 1993, wherein, of course, the Company denies the allegation made by the employee.
5. In the meanwhile, on 21st May, 1993 the Union wrote to the Executive Vice-President of the Company pointing out that some employees were being forced to retire voluntarily without disclosing the details of the scheme to them. It states that no scheme was announced and it was the practice of many companies to announce the Scheme openly to enable the employees to understand the same and decide whether they should opt for it or not. It was surprising that the petitioner Company had kept the Scheme shrouded in mystery. The complaint further says that the managerial staff of the Company was calling gullible employees and making them sign the papers without their understanding the scheme. Coercion, private counseling and canvassing was being done without publicly announcing the scheme. There was no transparency about the scheme which was being operated secretly. To this complaint of the Union, dated 21st May, 1993, a reply was sent by the petitioner Company on 1st June, 1993, which has been placed before me. Significantly, the reply says:-
"We have shown the scheme to such of the employees who have shown interest in knowing the contents of the scheme".
It is, therefore, accepted before me that the Scheme was not made public and the management indulged in picking and choosing the employees who were called to the chambers of senior managerial staff and who were, according to the respondent-Union, coerced and forced to sign the papers of voluntary retirement scheme.
6. It is relevant to note that the workman-Hedulkar also lodged a police complaint on 18th May, 1993 with the Worli Police Station alleging that he was forced, threatened and coerced to sign some papers. On the 2nd June, 1993 Hedulkar again complained to the Management of wrongful restraint and of making him sign the papers forcibly with a view to retire him prematurely. He denied that he had accepted the retirement scheme. He categorically stated that he wished to continue in the employment till the age of his superannuation. It is significant to note that Hedulkar never deposited the cheque in his Account.
7. The present complaint has been filed in the Industrial Court on 16th June, 1990. In the complaint, it is alleged that in the above facts and circumstances, the petitioner-Company was guilty of breach of the provisions of Section 9-A of the Industrial Disputes Act, 1947, in as much as a change in the conditions of service was sought to be effected without giving the notice as required by the said provision. Items Nos. 9, 10 and 11 of the IV Schedule to the Industrial Disputes Act, 1947 were relied upon in support of the contention that as against the superannuation age of 60 years, the concerned employee was sought to be retired at the age of 48. This amounted to introduction of new rules of discipline by alteration of the existing rules within the meaning of Item 9. Reliance was also placed on Item No. 10 which talks of rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen. Item No. 11 was also referred to since it talks of increase or reduction in the number of persons employed or to be employed in any occupation. According to the complaint, the notice as contemplated by Section 9-A of the Industrial Disputes Act, 1947 was admittedly not given for effecting the said changes in the conditions of service in respect of matters specified in Item Nos. 9, 10 and 11 of Schedule IV to the Industrial Disputes Act, 1947.
8. Apart from the above, it is further alleged that the petitioner-Company is guilty of unfair labour practice within the meaning of Item Nos. 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, M.R.T.U. & P.U.L.P. Act). Item No. 9 talks of failure to implement award, settlement or agreement, whereas Item No. 10 talks of indulging in act of force or violence.
9. The Industrial Court considered the material that was placed before it at the stage of interim relief and came to the conclusion that the communication of the scheme and completion of all the formalities was on one and the same day and undue and ugly haste has been shown by the management in obtaining the necessary papers of voluntary retirement. It referred to the grievance of the employee that he was forcibly confined to Shri Advani's cabin without allowing him to go to the canteen even to have a glass of water unless he had signed the papers pertaining to voluntary retirement scheme. The Court then discussed the provisions of the Standing Orders which provided for superannuation on attaining the age of 60, which were sought to be altered by resorting to the voluntary retirement scheme, which did attract the provisions of Section 9-A of the Industrial Disputes Act and particularly Item No. 11 of Schedule IV. It was held that, prima facie, notice under Section 9-A was essential. The learned Judge then considered the ratio of the Supreme Court decision in the case of S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Limited and Anr., reported in (1986-1-L.L.J-490), and held that prima facie Item No. 9 of Schedule IV to the M.R.T.U. & P.U.L.P. Act was attracted. On the question of balance of convenience, the learned Judge held that merely paying wages to an employee without allowing him to work may not keep him fit. Rather than permitting this, it would be advisable to allow the workman to work and then pay him. The job which Hedulkar was doing was very much in existence. Hardship to the employee would be much greater than the hardship to the petitioner company and hence interim injunction was granted in favour of the employee.
10. Shri Cama, the learned Counsel for the petitioner, has invited my attention to the said Early Voluntary Retirement Scheme and has relied heavily upon the fact that the employee had stated that he had understood the provisions of the scheme and had signed the papers on the 17th May, 1993. He had enough time on the 17th May, 1993 itself, contends the Counsel, to reflect upon his decision to retire voluntarily. He could have even sought the advice of his co-workers who were available in the premises. There were prior such schemes in the years 1989 and 1991 and though the 1993 scheme was not made public and was given effect to from 1st April, 1993, there was nothing new in the said scheme, contends the Counsel. According to the Counsel, the employee has been paid all his dues and apart from paying him Rs. 2,50,000/- plus Rs. 2,075 plus Rs. 50/- on 17th May, 1993, his gratuity account was settled on 2nd June, 1993 when he was issued a cheque for Rs. 66,168/-and similarly, his Provident Fund Account was settled when he was issued a cheque for Rs. 86, 495/- on the 3rd June, 1993. Shri Cama has invited my attention to a decision of the Supreme Court in the case of Hindustan Lever Limited v. Ram Mohan Ray and Ors., reported in (1973-1-L.LJ-427). He relied upon the observations appearing in para 11 at page 431 dealing with the scheme of reorganisation. He also invited my attention to a decision of my learned Brother A.A. Desai, J., in the case A.T. Wankhede and Ors. v. Executive Engineer, Chief Gate Erection and Ors., reported in (1991)1 C.L.R., p.23. Relying upon these two decisions, he contended that there is no breach of the provisions of Section 9-A of the Industrial Disputes Act and no notice of change was necessary in the facts and circumstances of the present case.
11. As against this, Shri Deshmukh, the learned Counsel appearing on behalf of the first respondent-Union, invited my attention to the fact that the preamble of the scheme itself suggests that the petitioner company was anxious to get rid of some of its staff. The preamble reads:-
"In view of the new technologies that have come in, increasing competition in the market, closure of certain businesses that have become necessary, we need to reduce surplus workers/executives in certain areas and sections of the company in order to continue profitable operation of the company.
The scheme has been drawn to result in overall reduction in the existing strength of the employees of the company".
Relying upon this Preamble, which is mentioned to be the criterion for introduction of the scheme, Shri Deshmukh contends that the provisions of Section 9-A of the Industrial Disputes Act, 1947 would be squarely attracted in as much as Item Nos. 9, 10 and 11 of Schedule IV would precisely be applicable in the event of the scheme being implemented in the light of the Preamble stated above. Counsel invited my attention to the fact that the scheme was not made public. The implementation of the scheme was shrouded in mystery. Gullible employees were called to the chambers of senior officers and writings were obtained on the same day. The employees did not realise the consequences, nor did they have the means or intelligence to work out the balance of service available and the benefit that would accrue to them. He relied upon the conduct of the employee in complaining to the Worli Police Station on the very next day and going with the written complaint on 18th May, 1993 to the petitioner company. Counsel also relied upon the fact that the reply given by the company to the Workers Union on the 1st June, 1993 says that the "Scheme was shown to such of the employees, who have shown interest in knowing the contents of the scheme". This, the Counsel contends, is not a satisfactory way of implementing the voluntary retirement scheme in contravention of the provisions of the Standing Orders. He invited my attention to the decision of the Supreme Court in the case of S.G. Chemicals and Dyes Trading Employees Union (supra), and particularly, to the observations appearing in para 23 at page 505 which read as under:
"It is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with the law. Such a provision is not required to be expressly stated in any contract. If the services of a workman are terminated in violation of any of the provisions of the Industrial Disputes Act, such termination is unlawful and ineffective and the workman would ordinarily be entitled to reinstatement and payment of full back wages".
12. Having heard the counsel for the parties, in my view, no interference is called for at this stage of the proceedings which has been expedited, to be decided within 6 months and all that is directed is to permit the employee to report on duty and to pay him for the services rendered by him. Since the complaint is pending, I cannot express any final opinion on the merits of the contentions. Much will depend upon the evidence that would be led. However, the Preamble of the Early Voluntary Retirement Scheme does contemplate the reduction of the staff. In my view, prima facie, such a scheme would attract Item Nos. 9, 10 and 11 of the IV Schedule to the Industrial Disputes Act, 1947, in view of which Section 9-A of the said Act would be applicable. There is substance in the contention that Items Nos.9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act would also be attracted. It does appear that the signatures of the employee were obtained on the 17th May, 1993 hurriedly, without affording him any opportunity of understanding the contents of the Early Voluntary Retirement Scheme. The writing at Exhibit "C" page 34 opens with the words "I have understood the terms of the Early Voluntary Retirement Scheme communicated to me". The manner in which the employee has scribbled in Marathi leaves much to be desired and much will depend upon the evidence as to what was the manner of communication of the said Scheme to the employee. The above quoted recital has to be viewed in the light of the categoric stand taken by the petitioner Company in its letter dated 1st June, 1993 addressed to the Vice-President of the Workers Union. Para 3 of the said letter opens with the following words:
"We have shown the scheme to such of the employees who have shown interest in knowing the contents of the scheme".
Admittedly, therefore, the Scheme was not made public. It was not put up on the Notice Board at the Head Office of the Company. It was not communicated to the first respondent-Union. The conduct of the employee in filing the complaint immediately on the next day to the management, coupled with the complaint to the Police also, lends credence, prima facie at this stage, to his story that he was pressurised and coerced to sign the papers on the 17th May, 1993 when he was taken to the Chambers of Shri Advani. Shri Cama mentioned the fact that the situation of the chambers at the Band Box Building at Worli would show that the Chambers of Shri Vasudevan, Vice-President of the Workers' 'Union was nearby. To this suggestion, Shri Deshmukh's reply was that Shri Vasudevan was attending the Industrial Court on the 17th May, 1993 and was not available on the spot for consultation.
13. Looking at the manner in which the signatures have been obtained from an apparently gullible employee, who only knows to scribble some lines in Marathi, I have my own doubts about the communication of the scheme to the employee and the knowledge of the same to the employee. The employee has 12 long years of service to go. He was drawing a salary of approximately Rs. 4000/- per month with a wife and three children dependent upon him. As stated at the outset, he is fit and eligible to work. There is neither any domestic inquiry pending against him nor is he threatened with any action There is large scale unemployment in this country. In a city like Bombay, it is difficult to appreciate why an able-bodied person with 12 years of service left would suddenly think of accepting Voluntary Retirement for a paltry sum of Rs. 2.5 lakhs. In case of surrender of tenancy under the Bombay Tenancy & Agricultural Lands Act, 1948, where a tenant surrenders his valuable rights under Section 15 of the said Act, Rule 9 of the Bombay Tenancy and Agricultural Lands Rules, 1956 contemplates the Mamlatdar to hold an inquiry and satisfy himself that the tenant understood the nature and consequences of the surrender and that it was voluntary and he has to endorse his findings in that behalf on the instrument of surrender. I am only citing an instance where surrender of valuable rights or relinquishing valuable rights has to be done in a manner free from doubt, particularly when the person concerned is not educated and is not attributed with sufficient degree of knowledge and understanding. In the facts of the present cast, I have my own doubts about the employee Hedulkar having known and understood the implications of the Early Voluntary Retirement Scheme and then exercise his volition on 17th May itself. All the events have occurred hurriedly on the 17th May. There is, thus, prima facie, good reason to hold, at this stage, that there had been undue haste on the part of the petitioner Company in processing the voluntary retirement of the concerned employee.
14. I am also in agreement with Shri Desh-mukh's contention that prima facie, at this stage, the conduct of the petitioner Company does amount to an unfair labour practice within the meaning of Items Nos. 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act Counsel is justified in placing reliance on the observations of the Supreme Court in Para 23 of the judgment in the case of S.G. Chemicals and Dyes Trading Employees Union, (supra), which observations have been quoted above in para 11. I do not think that, with respect, the ratio of the Supreme Court decision in the case of Hindustan Lever Ltd. (supra) on which Shri Cama placed reliance has any application to the facts of the present case. Similarly, the ratio of the decision of A.A. Desai, J. in the case of A.T. Wankhede, (supra) has no application to the facts of the present case.
15. On the material that was placed before the Industrial Court, the view taken by the Industrial Court is possible view of the matter. The Industrial Court has weighed the pros & cons and, on the question of balance of convenience, has recorded a finding that the balance of convenience lies in favour of the workman, rather than in favour of the petitioner-company. The hearing of the complaint has been expedited and Shri Cama unequivocally stated before me that the Company was agreeable to have the matter disposed of within a period of 6 months. Under the circumstances, I do not think that the view taken by the Industrial Court at the interim stage is such as to call for interference in the writ jurisdiction under Article 226 of the Constitution of India. It was not suggested that the view taken by the Industrial Court is either perverse or arbitrary.
16. In view of the above, there is no merit in the petition and the same is rejected summarily.
17. Shri Ravindran prays for four weeks' stay. Shri Deshmukh opposes. The prayer is rejected.