Bombay High Court
Shri Gajanan Gangaram Patil vs M/S. Relene Petrochemicals Ltd on 12 September, 2012
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
1 wp-4810-12 - main group-17.sxw
dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 4810 OF 2012
Shri Gajanan Gangaram Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ig ALONG WITH
WRIT PETITION NO.4812 OF 2012
Liladhar Kisan Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4813 OF 2012
Vasudev Kaluram Bhoir .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4816 OF 2012
Sandeep Padmakar .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
::: Downloaded on - 09/06/2013 19:07:10 :::
2 wp-4810-12 - main group-17.sxw
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4817 OF 2012
Prabjhakar Bemtya Mhatre .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4818 OF 2012
vs
Dattatray Baliram Mhatre .... Petitioner
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4823 OF 2012
Vishwanath Babu Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4824 OF 2012
Suresh Babu Madhavi .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4827 OF 2012
::: Downloaded on - 09/06/2013 19:07:10 :::
3 wp-4810-12 - main group-17.sxw
Mahadev Ramdas Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.4828 OF 2012
Rohidas Pandurang Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai
ig .... Respondent
ALONG WITH
WRIT PETITION NO.4830 OF 2012
Krishna Harishchandra Patil .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.6141 OF 2012
Jayram Pandurang Mhatre .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.6150 OF 2012
Rambhau Shankar Shinde .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
::: Downloaded on - 09/06/2013 19:07:10 :::
4 wp-4810-12 - main group-17.sxw
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.7625 OF 2012
Savari Muthu Jemes .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.7685 OF 2012
Satish Devidas Patil ig .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO. 7686 OF 2012
Mahadev Ragho Lokhande .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.7688 OF 2012
Sudhakar Kashiram Ghag .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO.7691 OF 2012
::: Downloaded on - 09/06/2013 19:07:10 :::
5 wp-4810-12 - main group-17.sxw
Ghanshyam Tatoba Rane .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
ALONG WITH
WRIT PETITION NO. 7692 OF 2012
Harishchandra Shantaram Kadam .... Petitioner
vs
M/s. Relene Petrochemicals Ltd.
(M/s.Reliance Corporate IT Park Ltd.
Thane Belapur Rd, TTC, Navi Mumbai .... Respondent
Mr. A.D. Kango for the Petitioners in Writ Petition Nos. 4810/12,
4812/12, 4813/12, 4816/12, 4817/12, 4818/12, 4823/12, 4824/12,
4827/12, 4828/12, 4830/12, 6141/12 and 6150/12.
Mr. Suresh M. Sabrad with Mr. D.R. Patekar and Mr. Yuwraj D. Patil
for the Petitioners in W. P. Nos. 7625/12, 7685/12, 7686/12, 7688/12,
7691/12 and 7692/12.
Mr. Chander Uday Singh, Senior Advocate along with Mr. Kiran S.
Bapat and Ms. Malanie D'souza i/by Mr. A.S. Dayal and Associates for
the Respondents in all the matters.
CORAM: ANOOP V. MOHTA, J.
JUDGMENT RESERVED ON : September 06, 2012
JUDGMENT PRONOUNCED ON: September 12, 2012
JUDGMENT.:
By consent, heard finally.
::: Downloaded on - 09/06/2013 19:07:10 :::
6 wp-4810-12 - main group-17.sxw
The Background events are :-
2 On 16 April, 2002, Erstwhile PCD Unit of NOCIL (formerly
National Organic Chemicals Ltd.) practically closed due to financial
difficulties.
3 On 20 March, 2003, a Closure permission was granted by the
State Government to NOCIL under Section 25-O of the Industrial
Disputes Act, 1947 (for short, the ID Act), but this was set aside by
consent before the High Court and the matter was remanded. Later,
the permission was once again granted on 20 March 2003. On 31
January 2004, the Industrial Tribunal set aside closure permission
under Section 25-O(5). Writ Petition No.5046 of 2004 filed by
NOCIL to challenge Industrial Tribunal's order was admitted and
pending. NOCIL had also filed a Company petition for demerger of
the PCD Unit from the Company, which is also pending.
4 On 11 September, 2004, a Tripartite memorandum of
understanding (MOU) between NOCIL, the unions (NOCIL Employees'
Union and PIL Employees Union), and Relene Petrochemicals Ltd for
take over of PCD Unit (Relene). The MOU provided that NOCIL
would offer VRS to all its employees (Plan "A" or Plan "B"), after which
::: Downloaded on - 09/06/2013 19:07:10 :::
7 wp-4810-12 - main group-17.sxw
Relene would offer fresh employment subject to medical fitness as
well as successful completion of institutional/residential training.
5 On 23 September 2004, some employees including the
Petitioners took VRS Plan A and ceased to be an employee of NOCIL
and thereafter applied for fresh employment with the Respondent
Company subject to being declared medically fit. On being declared
medically unfit the Petitioners were given the benefits of VRS Plan B,
amounting to Rs.4.5 lakhs. They recovered it also. In 2004, Writ
Petition No.5046 of 2004 was disposed of in terms of tripartite MOU
dated 11 September, 2004.
6 On 4 January 2005, early separation Plan was declared by the
Respondent Company for the purpose of right-sizing its labour force in
the erstwhile PCD Unit of NOCIL.
7 On 5 January, 2005, a strike notice was issued for demands
raised by the recognised union in respect of dismissed workmen and
medically unfit ex-workmen of NOCIL. The demands were admitted
in Conciliation and proceedings went on before the Deputy Labour
Commissioner and Conciliation Officer.
::: Downloaded on - 09/06/2013 19:07:10 :::
8 wp-4810-12 - main group-17.sxw
8 On 14 January, 2005 a letter was issued by one Shri Prasad
Tokekar clarifying that there was no substance in rumours that the
management would grant additional financial compensation at a later
date and assuring that if any additional financial compensation is
offered to dismissed employees or to those who opt for separation
later, the same will be offered "to those who take benefit of the instant
Early Separation Plan, as well as those who have separated earlier under
NOCIL VRS Plan B.".
9 Admittedly, on 18 June, 2005, a conciliation Settlement signed
under Section 12(3) read with 18(3) by which the recognised union
and company agreed that a full and final increase of Rs. 2.34 lac per
workman would be paid over and above VRS Plan A and VRS Plan B
given by NOCIL. By this tripartite Conciliation Settlement, all
workmen, whether they had taken both VRS Plans A & B, or had taken
VRS Plan A and opted for employment with Relene, or had been found
medically unfit or had been dismissed for non-participation in
training, were brought on par by being paid a gross total of Rs. 6 lacs,
minus the amount of VRS already received. Thus, those who had
taken Plan A and B received a top-up amount of Rs.2.34 lac to bring
::: Downloaded on - 09/06/2013 19:07:10 :::
9 wp-4810-12 - main group-17.sxw
their total to Rs.6 lac, while those who had not taken VRS earlier,
were paid the full amount of Rs. 6 lac.
10 On 13 July, 2005, pursuant to applications dated 18.6.2005 and
undertakings given by the Petitioners received Rs. 2.34 lac as per
Conciliation Settlement dated 18.6.2005. Similarly, all others covered
by 18.6.2005 Settlement received their respective amounts in June-
July 2005.
11 On 15 November 2006, almost one and a half years later,
Respondent Company and the recognised union arrived at a MOU by
which they agreed that the erstwhile PCD Unit be shifted to other
locations along with its workmen, and that in case any workmen were
not willing to shift with protection of service conditions and
improvement of benefits, then such workmen by offered a fresh VRS.
12 On 5 December, 2006, a settlement signed between Recognised
Union and Respondent in terms of MOU dated 15.11.2006, agreeing
to the shifting of PCD Unit along with its workmen, and the amount of
VRS to be offered to those workmen who were unwilling to shift.
::: Downloaded on - 09/06/2013 19:07:10 :::
10 wp-4810-12 - main group-17.sxw
13 In 2008, Petitioner and some other ex-employees of NOCIL
raised industrial disputes claiming that they should receive additional
payments on para with VRS given under the Settlement dated 5
December, 2006, and these disputes were referred to adjudication.
14 On 22 June, 2010, Statement of Claims filed by Petitioner in Ref.
(IT) No.59 of 2009. A written statement filed by the Respondent
Company. On 29 January 2011, evidence of Petitioner by way
of affidavit and cross-examination thereon. On 24 November, 2011,
the Industrial Tribunal's common Award in similar class of cases
rejected the Reference on the grounds that (a) the references were not
maintainable in the cases of those ex-employees of NOCIL who were
found medically unfit and thereby never became employees of the
Respondent Company; (b) the references were not maintainable in the
cases of those dismissed workmen like the Petitioner who had
accepted payments under the Conciliation Settlement dated
18.6.2005; ( c ) all claims of these workmen stood finally satisfied by
the said Settlement dated 18.6.2005 and they had no subsisting
dispute thereafter and (d) the Conciliation Settlement dated
18.6.2005 clearly superseded the prior assurance contained in the
letter dated 14.1.2005.
::: Downloaded on - 09/06/2013 19:07:10 :::
11 wp-4810-12 - main group-17.sxw
15 The relevant provisions of ID Act are as under :
"2(k) "Industrial dispute" means any dispute or
difference between employers and employers, or between
employers and workmen, or between workmen and
workmen, which is connected with the employment or non-
employment or the terms of employment or with the
conditions of labour of any person.
2(p) "settlement" means a settlement arrived at in
the course of conciliation proceeding and includes a written
agreement between the employer and workmen arrived at
otherwise than in the course of conciliation proceeding
where such agreement has been signed by the parties
thereto in such manner as may be prescribed and a copy
thereof has been sent to [an officer authorized in this behalf
by] the appropriate Government and the conciliation
officer.
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
::: Downloaded on - 09/06/2013 19:07:10 :::
12 wp-4810-12 - main group-17.sxw
(III) who is employed mainly in a managerial or
administrative capacity, or
(IV) who, being employed in a supervisory capacity, draws
wages exceeding [Ten thousand 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.
18 Persons on whom settlements and awards are
binding. - (1) A settlement arrived at by agreement
between the employer and workman otherwise than in the
course of conciliation proceeding shall be binding on the
parties to the agreement.
[Provided that, where there is a recognised union for
any undertaking under any law for the time being in force,
than such agreement (not being an agreement in respect of
dismissal, discharge, removal, retrenchment, termination of
service, or suspension of an employee) shall be arrived at
between the employer and the recognised union only; and
such agreement shall be binding on all persons referred to
in clause © and clause (d) of sub-section (3) of this
section].
(2) Subject to the provisions of sub-section (3), an
arbitration award which has become enforceable shall be
binding on the parties to the agreement who referred the
dispute to arbitration.
(3) A settlement arrived at in the course of conciliation
proceedings under this Act [ or an arbitration award in a
case where a notification has been issued under Sub-section
(3A) of Section 10A] or [an arbitration award in case where
there is a recognized union for any undertaking under any
law for the time being in force] or [an award [of a Labour
Court, Tribunal or National Tribunal] which has become
::: Downloaded on - 09/06/2013 19:07:10 :::
13 wp-4810-12 - main group-17.sxw
enforceable] shall be binding on -
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the
proceedings as parties to the dispute, unless the Board,
[arbitrator], [Labour Court, Tribunal or National Tribunal],
as the case may be, records the opinion that they were so
summoned without proper cause;
(c ) where a party referred to in clause (a) or clause (b) is
an employer, his heirs, successors or assigns in respect of the
establishment to which the dispute relates;
(d) Where a party referred to in clause (a) or clause (b) is
composed of workmen, all persons who were employed in
the establishment or part of the establishment, as the case
may be, to which the dispute relates on the date of the
dispute and all persons who subsequently become employed
in that establishment or part."
16 The point of reference was as under :
"Shri Gajanan Gangaram Patil and others should
be paid an amount of Rs.16,00,000/- as consequential
difference between two VRS plans as per letter dt.
14.01.2005 of management as contained in workmen's
letter dt. 19.01.2008 addressed to management."
Similar points were referred in all other Petitions.
17 The following issues were framed :
"1 Whether the Reference is maintainable ?
::: Downloaded on - 09/06/2013 19:07:10 :::
14 wp-4810-12 - main group-17.sxw
2 Whether the Second Party is a workman
under Section 2(s) of I.D. Act, 1947?
3 Does the Second Party proves that the
notice dt. 14.01.2009 (2005) is an agreement? If yes,
does the second party proves that the first party has
failed to implement the agreement dt. 14.01.2009
(2005)?
4 Whether the second party is entitled for the
reliefs claimed?
5 What Award?
The findings on the above issues are as under :
1
2
No.
No
3 In the Negative.
4 No
5 As per final Award."
Similar issues were framed in all the matters.
18 The relevant notice dated 14.01.2005 which is stated to be
agreement is as under :
"RPCL - Early Separation Plan
Extended upto January 20, 2005
The early separation plan dated January 4, 2005 was
displayed at the suggestion of Hon'ble Deputy Labour
Commissioner and Conciliation Officer, Thane.
Some employees have, indeed, taken benefit of the
Plan.
The Deputy Labour Commissioner and Conciliation
Officer, Thane communicated to us yesterday that some
of the employees/ex-employees (Those who were
dismissed or are in employment) have approached him
::: Downloaded on - 09/06/2013 19:07:10 :::
15 wp-4810-12 - main group-17.sxw
for requesting extension of the time by few days, as
they need some more time to decide if they would like
to take benefits of this plan.
The Deputy Labour Commissioner and
Conciliation Officer, Thane has further communicated
that some of them and also some of the ex-employees
of NOCIL who opted for VRS of NOCIL under Plan B
have told him about rumors that the dismissed
employees and some other on selective basis may be
granted additional financial benefits in comparison
with earlier cases. Authority has requested the
Management to clarify the position. In response the
request of Hon'ble Deputy Labour Commissioner, the
management has decided to extend the last date for the
Early Separation Plan to closing hours of January 20,
2005.
It is further clarified that there is no substance in this
rumor and there is no likelihood of management
granting additional financial compensation to anyone
opting for Separation at a later date or to those who
have been dismissed. The management hereby assures
that in case any additional financial compensation is
offered to any other employees who have been
dismissed or those who opt for separation later, the
same will be offered to those who take benefit of the
instant Early Separation Plan, as well as those who
have separated earlier under NOCIL VRS Plan B."
19 The extract of Terms of Settlement dated 18 June, 2005 are as
under :
SETTLEMENT UNDER SECTION 2(P) READ WITH
SECTION 18(3) OF THE INDUSTRIAL DISPUTES ACT,
1947 AND ALSO READ WITH SUB-RULE (4) OF RULE
62 OF THE INDUSTRIAL DISPUTES (BOMBAY) RULES
1957.
::: Downloaded on - 09/06/2013 19:07:10 :::
16 wp-4810-12 - main group-17.sxw
Short Recital of the Case
Whereas the PCD unit of NOCIL is managed by Relene
Petrochemicals Private Limited (herein after referred as
RPCL) and is formalized vide an agreement dated
September 29, 2004.
Whereas a Tripartite MoU was signed between NOCIL,
RPCL, NOCIL employees union and PIL employees
union on September 11, 2004, whereby NOCIL's PCD
employees were given choice of accepting a Voluntary
Retirement or join employment of RPCL on such terms
and conditions as prescribed in the said MoU.
Whereas 21 ex NOCIL employees belonging to Non
SCC Non Technical category preferred to join
employment with RPCL and were to undergo
institutional residential training as per Clause No. 1 (d)
and (f) of Part-II of the said MoU. (List attached as
Annexure A).
And that 19 ex NOCIL employees belonging to SSC
Non Technical category preferred to join employment
with RPCL and were to appear for a validation test to
decide their further training as per Clause No 1(d) and
(f) of Part-II of the said MoU to facilitate the said
employees, a pre validation refresher course was
organized. (List attached as Annexure B).
Owing to variety of reasons, employees from both
categories above, concertedly abstained from the
institutional training and validation tests and the
management was constrained to take disciplinary
action against them and as such were dismissed from
the employment after following due process of law.
There were 34 ex NOCIL employees belonging to
various categories who had desired to join employment
of RPCL but were found medically unfit and as such
were paid/offered VRS compensation by NOCIL as per
::: Downloaded on - 09/06/2013 19:07:10 :::
17 wp-4810-12 - main group-17.sxw
Clause VIII of Annexure E of the said MoU. (List
attached as Annexure C).
The Union agitated over the above issues and several
rounds of discussions have taken place between the
management and the union from time to time.
So also about several individual ULP complaints have
been filed in the Hon. Industrial Court at Thane.
Vide notice-dated January 5, 2005, Union had
threatened to call a strike on the issues which were set
out in its statement of reasons annexed to the strike
notice (viz. Issues pertaining to dismissal and medical
unfitness) which have been admitted in conciliation
and the matter is before Shri RS Ghodeswar, Deputy
Labour Commissioner, Thane who is the Conciliation
Officer in the instant dispute.
Management had contended that it will not be possible
for them to consider re-employment of any of the
dismissed employees or unfit cases. However, was
willing to consider any other alternatives towards an
amicable settlement/resolution of the issues. It also
emphasized that all those who were medically unfit,
are already paid compensation by NOCIL as per MoU.
And that nothing more is required to be done for the
said cases in view of the provisions in the MoU.
The Union disagreed with the stand of the
management and insisted upon its demand related to
employment, which has been on the record of the
conciliation proceedings.
Hon. Guardian Minister Shri Ganesh Naik also advised
the parties to amicable settle the issues through
dialogue, facilitated and solemnized by the Conciliation
Officer within the framework of law.
And with a view to settle the disputes between RPCL,
Unions and the above listed persons protracted
::: Downloaded on - 09/06/2013 19:07:10 :::
18 wp-4810-12 - main group-17.sxw
discussions were carried out amongst the parties which
resulted into an understanding,which is recorded
below, in presence of the Hon. Deputy Labour
Commissioner and the Conciliation Officer, Thane.
Memorandum of Understanding (MoU) :
The following has been decided between the parties:
1) Amongst various proposals brought forth by the
parties, one proposal from the employees, was to pay
the cost of institutional training - which otherwise
would have been incurred - to the dismissed
employees.
It was also requested by the Union/representatives that
those declared medically unfit to join employment with
RPCL be also offered some compensation. The
management pointed out that those who are declared
medically unfit have been already paid by NOCIL the
Plan B VRS compensation and no further compensation
is payable.
Hence, purely on humanitarian grounds, without
setting any precedent of whatsoever nature, the
company has agreed for following compensation:
2) Compensation already paid:
The 34 medically unfit ex NOCIL employees appearing
in Annexure C are already paid the VRS Plan B
compensation by NOCIL in terms of the MoU.
Those who have participated in Early Separation plan
of RPCL too have been paid the compensation as per
the plan.
Those who have been dismissed from the employment
whose names appear in the Annexures A & B have yet
not been paid any compensation.
::: Downloaded on - 09/06/2013 19:07:10 :::
19 wp-4810-12 - main group-17.sxw
3) Compensation payable under this settlement:
Those who have been dismissed from the employment
whose names appear in the Annexures A & B will be
paid Rs. 7,91,000/- as one time compensation subject
to tax. (Post tax this works out to Rs.6,00,000/-).
The dismissed workmen whose names appear in
Annexure D do not desire to accept the One-time
compensation offered by the company. Such workmen
listed in Annexure D shall be at liberty to take recourse
to law as may be desired by them.
The 34 medically unfit ex NOCIL employees appearing
in Annexure C and those who have participated in
Early Separation plan of RPCL will be paid
Compensation of Rs. 2, 34,000/- as additional
compensation without setting any precedent of what so
ever nature, subject to income tax. (Post tax this works
out to Rs.2,11,200/-.).
The workmen who are declared medically unfit and
whose names appear in Annexure E, do not desire to
participate in the early separation plan. Such workmen
listed in Annexure E shall be at liberty to take recourse
to law as may be desired by them.
The tax on the above compensation will be borne by
respective individuals as per the law.
4) General
a. All the dismissed employees except those whose names are
listed in annexure D and those declared medically unfit to join
RPCL - except those listed in annexure E, will accept and will be
bound by the above Memorandum of understanding between
the parties.
b. The litigations pending before Hon. Industrial Court
between the company and the union and dismissed individual
employees that are listed in the Annexure F to the MoU will be
::: Downloaded on - 09/06/2013 19:07:11 :::
20 wp-4810-12 - main group-17.sxw
withdrawn, save and except in respect of those whose names
appears in Annexure D and Annexure E.
c. Any other proposals/ counter proposals made during the
discussions prior to this settlement shall be considered as
dropped/withdrawn.
d. The Union, the dismissed employees and Unfit declared
ex-NOCIL employees - except those whose names appear in
Annexure D and Annexure E- agree that they will not raise any
dispute of whatsoever nature before any authority in future with
respect to the terms of the MoU and the issue will be deemed as
settled once and for all. All these persons connected with the
above will sign individual declarations to the above effect.
e.
The Union/ dismissed employees and Unfit declared ex-
NOCIL employees - except those whose names appear in
Annexure D and Annexure E - further agree that they will not
raise any demand / dispute of whatsoever nature before any
authority in future in respect of any other person connected or
not connected with RPCL on the above issue and also forthwith
draw any litigations pending before any judicial machinery."
[emphasis added]
20 The parties, by consent, led their restricted evidence in the
following ways :
Exh. CU-1 :- The parties abovenamed states and submit
that they desire to lead common evidence in the matters
listed at Schedule T. The issues in these matters are
more or less same. Therefore, the parties submit that
the matters listed in Schedule `I' may pleased be
combined and the parties may be permitted to examine
common witnesses. The parties further pray that all the
said matter may be disposed off by a common order.
Exh. CU-7 :- M/s. Relene Petrochemicals Limited,
::: Downloaded on - 09/06/2013 19:07:11 :::
21 wp-4810-12 - main group-17.sxw
now know as Reliance Corporate IT Park Limited
(hereinafter referred to as the first party) states that the
parties to the above matter have agreed to adopt the
evidence recorded in Reference (IT) No. 20 of 2009;
Reference (IT) No. 21 of 2009; Reference (IT) No. 22 of
2009; Reference (IT) No. 21 of 2009; Reference (IT)
No.22 of 2009; Reference (IT) No.26 of 2009; Reference
(IT) No. 59 of 2009; Reference (IT) No. 67 of
2009;Reference (IT) No. 70 of 2009. In view of the
common evidence adopted in the above matter, the First
Party closes its evidence.
Therefore, bare reading of the above purshis the ground
urged and the grievance aired leaves us in no doubt that
there is common question of law and fact, therefore the
present group of References are decided together."
21 The Petitioners/employees accepted the settlement dated
18.6.2005 received the monetary consideration as per the settlement.
They also signed the declaration that they would not raise any claim
against the Respondent in respect of their severance. One of the
specimen of such declaration as relevant, is as under :
"AFFIDAVIT/IRREVOCABLE DECLARATION
I, Mr. Gajanan Gangaram Patil, age 38 yrs, residing at H
No.1732, Koliwada, At & Post Ghansoli, Thane Belapur
Road, Navi Mumbai 400 701, hereby solemnly affirm as
follows.
I have read and understood the settlement signed today i.e.
June 18, 2005 by and between Relene Petrochemicals
Private Limited, Thane-Belapur Road, Navi Mumbai and
NOCIL employees Union and individual under Section 2(p)
::: Downloaded on - 09/06/2013 19:07:11 :::
22 wp-4810-12 - main group-17.sxw
and Rule 18(3) of the Industrial Disputes Act 1947 and
rules thereunder. The Scheme under the settlement has
also been read and explained to me, and I have understood
the contents of the same.
I have submitted an application-dated 18, 2005 to the
management communicating my acceptance of the terms of
the said settlement and permanently and irrevocably
relinquish my claim on employment with Relene
Petrochemicals Private Limited by accepting the
settlement/tendering my resignation in terms of the
settlement and to pay the compensation as per the
settlement.
I further declare that the settlement shall be binding on me
entirely and my above application dated June 18, 2005 is
irrevocable and shall not be revoked or terminated by me or
any other person, nor shall it be amended or altered by me
or any other person.
I also undertake to withdraw all litigation pending at any
judicial forum against the company as also not to raise any
dispute in respect of my separation, amount of
compensation or of any other nature in this transaction
between me and Relene Petrochemicals Private Limited at
any forum and/or before any authority at any time in
future.
Yours faithfully,
Signature : Sd/-
Name : Gajanan Gangaram Patil
Date : 18th June 2005.
Witness 1 : Witness 2 :
Signature : Sd/- Signature : Sd/-
Name : Parte V. R. Name : R. K. JADHAV
Date : 18/06/2005 Date : 18/06/2005."
The non-execution of this affidavit/declaration before the magistrate
::: Downloaded on - 09/06/2013 19:07:11 :::
23 wp-4810-12 - main group-17.sxw
or the authority, is not so important, the moment, the respective
employees unable to deny their signature and the benefits, arising out
of the same.
22 The Respondents as provided and proved it in tabulated form
in evidence and averred in a common affidavit reply also. I am not
inclined to accept the additional submissions of the Petitioners; now
raised in rejoinder. The Petitioners cannot change stand or bring out
new case in Writ Petition in such fashion. All these afterthought and
inconsistent statements and averments itself shows their unclean,
vague and inconsistent pleas/assertions which are not reliable and or
sufficient to grant the reliefs so prayed.
23 There are 4 batches/groups of employees/references/claims:-
a) The employees/Petitioners declared medically
unfit for employment (Award No.1.)
b) The Petitioners dismissed after domestic
enquiry but not challenged (Award No.2)
c) The Petitioners dismissed after domestic
enquiry and dismissal challenged (Award
No.3).
::: Downloaded on - 09/06/2013 19:07:11 :::
24 wp-4810-12 - main group-17.sxw
d) Such others.
We are concerned basically with these three awards.
24 Writ Petition No. 4810 (Gajanan G. Patil)- He was declared
medically unfit but who got the benefits of Rs.2.34 lacs (net
Rs.2,11,200/-) as per settlement dated 18 June 2005 in addition to
the VRS plan A and B. All the other Petitioners-employees in this
group of matters are similarly placed, except their names and
reference numbers. The learned Judge has given common findings
accordingly and the same has been treated as Award No.1 to avoid
repetition, therefor the common order.
25 In Writ Petition No. 4814 of 2012, (Ramesh Krishna Patil), the
Petitioners received Rs. 7.91 lacs (net Rs. 6 lacs) as per the settlement
dated 18 June 2005. This Petition is dismissed after domestic enquiry
but not challenged the award. The award is treated as Award No.2.
The Petitioner in Writ Petition No. 6142 of 2012 settled and the ULP
was dismissed by the Labour Court Thane. The Writ Petition No.
4806 of 2012 (Nivrutti Pandharinath Mhatre) who was dismissed after
domestic enquiry therefore challenged the dismissal order. The
Petitioner received Rs.7.91 lacs (net Rs.6 lacs) as per the settlement
::: Downloaded on - 09/06/2013 19:07:11 :::
25 wp-4810-12 - main group-17.sxw
dated 18 June 2005. There respective ULP/cases settled and
dismissed by the Labour Court, Thane.
26 The Petitioner in Writ Petition No. 7663 of 2012 (Gorakhnath
Hiraji Mhatre) resigned but no specific operative order was passed in
his reference. The Petitioner in Writ Petition No. 7687 of 2012
resigned but not joined. In Writ Petition No. 7686/2012, the
Petitioner resigned but not joined. His case, as per the Respondent was
falls under the medically unfit matters.
27 In Writ Petition No. 4810 of 2012, medically unfit matters, the
main prayers of settlement of claim filed before the Industrial
Tribunal, Thane were as under:-
"a) This Hon'ble Court be please held that the action of the
first party company of not paying difference amount of
Rs.16 Lakhs to the second party workman is illegal.
b) The Hon'ble Court be please held at the first party
company failed to implement notice/agreement dated
14.1.2005 and illegally refused to pay difference of
Rs.16 Lakhs between the two plan i.e. the Early
Separation Plan 2005 and Early Separation Plan
2006.
c) This Hon'ble Court be pleased direct the first party
company to pay Rs.16 Lakhs to the second party
::: Downloaded on - 09/06/2013 19:07:11 :::
26 wp-4810-12 - main group-17.sxw
workman towards difference between two plan i.e.
Early Separation Plan 2005 and Early Separation
Plan 2006 as per notice dated 14.1.2005.
d) Any other relief as deem feet by this Hon'ble Court.
e) Cost of the reference."
28 The similar prayers have been made in Writ Petition No.4814 of
2012 (Award No.2) and all the connected matters. So also in other
groups of Writ Petition No. 4806 of 2012 (Award No.3) and connected
matters.
29 The notices were issued for the final disposal at the admission
stage. The Respondents have filed their respective affidavits. The
rejoinder and additional compilation in each matters have been filed.
All the matters and points are quite inter-connected and inter-linked.
Therefore, heard together by consent finally at the admission stage.
30 The Petitioners in all these matters have challenged the
impugned award by these Writ Petitions referring to Article 226 and
227 of the Constitution of India. Interim prayers were also made
against the Respondent company to deposit a sum of Rs.16 lacs
::: Downloaded on - 09/06/2013 19:07:11 :::
27 wp-4810-12 - main group-17.sxw
difference between the two plans 2005 and 2006.
31 The learned Industrial Court, after considering the evidence and
the material documents placed on record, recorded as under (In Writ
Petition No. 4810 of 2012):-
"Shri. Tokekar, management's witness who has signed the
alleged notice dt. 14.01.2005 is examined in Court and he
has denied the suggestion that the settlement dt. 18.06.2005
was not accepted by workers, as the question of claim
arising out of letter dt. 14.01.2005 was fully and finally
settled by company vide settlement dt. 18.06.2005, and
Shri. Tokekar, Management witness was put a specific
question in cross as under and he replied as under:-
Que.:- It is true that the management has not withdrawn
the letter dt. 14.01.2005?
Ans.:- The settlement dt. 18th June, 2005 overrides the
above letter.
Therefore, the second party has failed to discharge its
burden by proving that letter dt. 14.01.2005 is an
agreement. It also needs to be mentioned that Section 2(p)
of I.D. Act, 1947 postulates two methods of arriving at a
settlement. (1) Settlement in the course of conciliation
proceedings. (2) settlement otherwise than in the course of
conciliation proceedings, and it must be signed by the parties
in a prescribed manner. In this case, the letter dt.
14.01.2005 cannot be termed as an agreement because it is
not signed by both sides i.e. union and company or workers
and company. Whereas, the Settlement dt. 18.06.2005
signed later on is under Section 2(p) read with Section
18(3) of I.D. Act, 1947 by two parties. Therefore, Section
19(2) of I.D. Act states that every settlement reached
::: Downloaded on - 09/06/2013 19:07:11 :::
28 wp-4810-12 - main group-17.sxw
between the parties shall continue to be binding upon the
parties and it continues to bind till terminated by a notice in
writing to the other party. In this case the second party
workers are stating that the notice dt. 14.01.2005 is signed
by authorized signatory of the company Shri. Tokekar, hence
the assurance is given modifying the earlier settlements. In
this case Shri. Tokekar the signatory to the notice dt.
14.01.2005 is examined and he has explained the reasons
for putting up the notice and the management did not agree
to pay additional money. Therefore, the second party are
trying to enforce something, which is in derogation to the
Settlement and contrary to terms of settlement, and which is
not mentioned in the letter dt. 14.01.2005 and they are
misinterpreting the said letter although they have received
the amounts as agreed.
20. Therefore, the question which needs to be considered is
whether authorized signatory of the company on his own
without following the procedure of law can modify the
contents of a settlement dt. 18.06.2005 arrived at in the
course of conciliation proceedings, the answer is No.
Therefore, what is spoken by Shri. Tokekar in the notice
must have connection to the transaction and agreement of
the company to pay more, and first party company has
examined Tokekar to rebut the contention of the Second
Party with regard to the notice dt. 14.01.2005.
In the above references the persons are declared
medically unfit and they are ex-NOCIL employees and as per
settled law the settlement dt. 18.06.2005 can be superseded
only by other settlement and not by letter dt. 14.01.2005."
The Tribunal has thereby concluded the issue No.3 and 4 also.
32 The learned Industrial Tribunal after taking note of evidence
read with the material documents placed on record, in this matter also
::: Downloaded on - 09/06/2013 19:07:11 :::
29 wp-4810-12 - main group-17.sxw
after dealing with letter dated 14 January 2005 by giving similar
findings by taking note of Section 2(p) with Section 18(3) and 19(2)
of the ID Act held that every settlement between the parties shall
continue to be binding.
33 It is relevant to note that the Additional Commissioner of
Labour, Mumbai, in view of the workman's individual but identical
letter dated 19.01.2008, vide its letter dated 16.07.2009, 26.02.2009
and 21.12.2009 and in view of Section 12(4) of ID Act referred the
matter for deciding the dispute between the parties as per the
schedule which is already reproduced above. It is relevant to note the
basic demand as per letter dated 19.01.2008, which reads as under:
" Demand
In the month of December 2006 I along with my
colleagues had continuously tried to communicate with Mr.
Tokekar for the difference of compensation amount offered
to us i.e. Rs. 22 lakh as we had received only Rs. 06 lakh as
compensation against the same. Therefore, the difference
of Rs. 16 lacs remains with Relene Petrochemicals Ltd and
obviously I am bonafidely entitled for the same. Every time
Mr. Tokekar told us that the difference between the
compensation that is Rs. 16 lakhs will be definitely
forwarded to all the consent employees at the earliest.
Hence through this demand notice I being employee of
Relene Petrochemicals Ltd appeal company management.
Kindly disburse the above mentioned difference between
two VRS plan (Rs. 16 lakh) at the earliest. As assured by
Mr. Tokekar I am generously waiting for the payment for
::: Downloaded on - 09/06/2013 19:07:11 :::
30 wp-4810-12 - main group-17.sxw
which I am bonafide entitled. I hope you will arrange to
send the said payment at the earliest at my above
mentioned address."
34 The learned Judge, Industrial Court, referring to the individual
case/reference number and similar facts and circumstances and as the
identical points of reference were involved and, therefore, based upon
the pleadings and the statement of the respective claims, has passed
the common order, but in three groups. The Respondent gave three
lists of the employees referring to their grievances and respective
claims. Therefore, for convenient and disposal and to avoid
repetition, I am taking first Petition in each of the lists as lead Petition
for the common order. The learned Judge, pursuance to the consent
as well as the purshis so filed by the parties referring to the particular
group of employees and as the common facts and questions are
involved, therefore, passed the common order. Therefore also this
common judgment.
35 The learned Judge has crystalised the facts in the following
words :
"The 22 persons employed by the management of
NOCIL mentioned in the tabulated form.
It is further submitted that thereafter the NOCIL
::: Downloaded on - 09/06/2013 19:07:11 :::
31 wp-4810-12 - main group-17.sxw
company was taken over by the management of M/s.
Relene Petrochemicals Ltd. As per MOU DATED
11.09.2004 SIGNED BETWEEN m/S. Relene
Petrochemicals Pvt.Ltd., National Organic Chemicals
Industry Ltd., NOCIL Employees union, and PIL
Employees Union and that from October-2004 onward
the second party workmen was employed by M/s.
Relene Petrochemicals Ltd.
It is further stated that all of a sudden the management
of M/s. Relene Petrochemicals Ltd has started
tremendous physical, mental as well as social
harassment of all the employees in every respect with
intention that the employees should submit their
resignation and leave the employment. It is also
submitted that the NOCIL Employees Union and M/s.
Relene Petrochemicals Ltd were very much hand in
gloves with each other because of this the so called
union leaders had motivated the Relene Management's
malafide interest for the terms and conditions of Early
Separation Plan, and accordingly the union signed
MOU dated 11.09.2004 before the Deputy
Commissioner of Labour, Thane. It is further submitted
that the First Party Management succeeded to compel
50% employees to accept Early Separation Plan and the
remaining employees were dragged into the domestic
enquiry held at various hotels and restaurants located
in the nearby area without giving any fair opportunity
to defend their case, some of the employees were
shown medically unfit to work without showing
appropriate medical reports given by the concerned
hospitals and some of the employees were compelled to
undergo for written examination conducted by M/s.
Relene Petrochemicals Ltd and some of the employees
were sent for alleged training, and some employees
were compulsorily sent for training at Village
Chinchani, Dist. Thane, and this harassment was
started only for the reason that the employees should
submit their resignation of service, and as a part of
harassment the management of M/s. Relene
Petrochemicals Ltd decided o complete the formality of
::: Downloaded on - 09/06/2013 19:07:11 :::
32 wp-4810-12 - main group-17.sxw
the enquiry and terminate the services of the workmen
and accordingly issued the charge-sheet to Mr.
Madhukar Dhanawade, Mr. Suresh Dhanawade, Mr.
Narayan Shigwan, Mr. Ghanshyam Rane and Mr.
Nandu Panchal and other employees, and by
completing the empty formality of the enquiry their
services are terminated illegally.
It is further contended that the first party
management were insisting to the second party
workmen to accept VRS and leave the employment but
second party workman refused to accept VRS, and
therefore he was illegally declared medical unfit for
employment and his services were illegally terminated
and before declaring medically unfit for employment
the first party management has not given any
opportunity to the second party workman to defend his
case and illegally and arbitrarily he was declared
medically unfit for employment. It is also submitted
that at the time of termination of his services the first
party management taken the shelter of MOU dated
11.09.2004 and illegally terminated the services
without following due process of law. It is next
submitted that the management and the union has no
right to sign settlement in respect of termination of
services of any of the employees and as per ratio laid
down by Hon'ble Bombay High Court employer the
recognized union by settlement cannot decide the fate
of workmen by agreeing to terminate their services in
violation of provisions of law, and that at the time of
termination of his services the first party company
failed to comply the provisions laid down under
Section 25-F, 25-G, 25-O of the I.D.Act, and that his
services are terminated illegally without following due
process of law and therefore, the action of the first
party company is illegal and unjustified.
The second party workmen submit that the
second party workman challenged the said illegal
termination order before the Conciliation Officer, and
during the pendency of the conciliation proceeding the
::: Downloaded on - 09/06/2013 19:07:11 :::
33 wp-4810-12 - main group-17.sxw
management issued one notice dated 14.01.2005 and
informed the employees that as per the suggestion of
the Deputy Labour Commissioner and Conciliation
Officer, Thane the management has decided to extend
the last date for the early separation plan to the closing
hours of 20.01.2005. It is further submitted that in the
said notice dated 14.01.2005 the first party
management clarified that the management hereby
assures that in case any additional financial
compensation is offered to any other employee, who
have been dismissed or those who opt for separation
later, the same will be offered to those who take benefit
of the instant Early Separation Plan, as well as those
who have separated earlier under NOCIL V.R.R. Plan-B ,
and therefore, he is entitled to be paid the difference of
Rs. 16 lacs as he is paid only 6 lacs.
The Second Party workmen further submit that
during the month of December-2006, the second party
workman along with his 21 colleagues had
continuously tried to communicate Mr. Tokekar,
Manager of the first party company for making
payment of the difference of compensation amount
offered to them as per the management letter dated
14.01.2005, and that every time Mr. Tokekar, the
Manager of the First Party company told them that
difference of the compensation amount i.e. Rs. 16 lacs
will be definitely forwarded to all the concerned
workers at the earliest, and as assured by Mr. Tokekar,
the Manager of the First Party company the second
party workman and other colleagues waited for long
time but since there was no response and therefore,
they decided to raise dispute before the Conciliation
Officer.
The Second Party workman further submitted
that his services were terminated illegally without
following due process of law, and the first party
management illegally and arbitrarily he was declared
medically unfit for employment, and the said action
challenged by second party workmen before the
::: Downloaded on - 09/06/2013 19:07:11 :::
34 wp-4810-12 - main group-17.sxw
Conciliation Officer, Thane, and during the pendency of
the conciliation proceeding the first party management
agreed to pay legal dues as per notice dated
14.01.2005 and as per the assurance given in the
notice dated 14.01.2005, the second party workman
accepted the legal dues and therefore this is not a case
of V.R.S. But it is a case of termination of service, and
his services illegally terminated and therefore the
second party workman is covered under the definition
of Section 2(s) of the Industrial Dispute Act, 1947. It
is further submitted that the assurance given by the
first party company in the notice dated 14.01.2005 is
an agreement and therefore the first party management
is bound to pay difference amount of Rs. 10 lacs
between the Early Separation Plan 2005 and Early
Separation Plan, 2006. Therefore, the second party has
prayed that the action of first party company of not
paying difference amount of Rs. 16 lacs to second party
is illegal, and first party company should pay the
same."
36 The Respondents/workmen resisted the same by its reply and
written submissions. Those submission as crystalised are as follows :
"Therefore in the written arguments of the company, it
is argued in short at pages 19 to 20 that :-
a) The Medically unfit ex-NOCIL employees are not
`workmen' as defined under the Industrial Disputes Act
because they were never employed by the Company
and have also declared that they have resigned from
the services of the company pursuant to Settlement
dated 18.06.2005.
b) The dismissed employees are not `workmen'
under the Industrial Disputes Act because they have
declared that they resigned from the company pursuant
::: Downloaded on - 09/06/2013 19:07:11 :::
35 wp-4810-12 - main group-17.sxw
to the Settlement dt. 18.06.2005.
c ) The 2 employees who have opted for EPS dated
04.01.2005 are not `workmen' under the Industrial
Disputes Act because they have voluntarily resigned
from the services of the Company and 1 employees not
a `workmen' under the Industrial Disputes Act because
he never joined the employment of the company and
all these three employees have declared that they have
resigned from the services of the company pursuant to
Settlement dated 18.06.2005.
d) The persons/employees concerned in the
References have settled their disputes and demands
vide Settlement dated 18.06.2005. Therefore, no
industrial dispute exists or survives.
e) No master and servant relationship existed
between the company and persons who were declared
medically unfit. Hence, the concerned
persons/employees are not `workmen' as defined
under the Industrial Disputes Act, 1947.
f) No industrial dispute exists or survives as the
alleged dispute is settled as per Settlement dated
18.06.2005.
g) The letter dated 14.01.2005 does not create any
right in favour of the persons/concerned in the
Reference.
h) The persons who were dismissed from services
were dismissed in the year 2004 i.e. prior to the Early
Separation Plan dated 04.01.2005. Therefor, they have
no right whatsoever to claim any compensation based
on Voluntary Retirement Plan, ESP prior.
I) The persons who have opted for Early Separation
Plan dated 04.01.2005 ceased to be servants of the
Company on accepting voluntary Retirement. Hence,
they are not `workmen' under the Industrial Disputes
::: Downloaded on - 09/06/2013 19:07:11 :::
36 wp-4810-12 - main group-17.sxw
Act.
j) The alleged dispute claiming difference in
compensation under the Voluntary Separation Plan is
not a matter within the jurisdiction of the Industrial
Tribunal as the same is not included in the Third
Schedule of the Industrial Disputes Act."
37 The parties themselves have restricted their respective evidence
by filing separate purshis as referred in paragraph 4. The learned
Judge, based upon the draft issues so submitted by the parties, framed
the issues in the matter.
38 First of all, considering the averments as well as the prayer so
made by the complainants in their complaint, in the background of
Demand letter dated 19.01.2008, though reference was made to the
earlier letter/notice dated 14.01.2005, there was no specific reference
made to Settlement dated 18.06.2005. The Respondent, while
resisting the claim in the background referred, mentioned and placed
on record the settlement. The Petitioners, though led evidence in
support of their case, nowhere denied and/or resisted in any way
Settlement dated 18.06.2005. The objection and/or resistance of the
Settlement on various other grounds as averred in their original
complaint and/or in the letter in no way sufficient to accept their
::: Downloaded on - 09/06/2013 19:07:11 :::
37 wp-4810-12 - main group-17.sxw
submissions to overlook the Settlement. If there is no denial to the
Settlement, neither there is denial to the contents of the said
settlement. The individual objection, even if any, so raised, in no way,
take away the impact and the binding effect of the said Settlement.
39 The Settlement as reproduced above was admittedly under
Section 2(p) read with Section 18(3) of the ID Act 1947 and also read
with sub-rule (4) of Rule 62 of the Industrial Disputes (Bombay)
Rules, 1957 (the Rules). The recital of the said Settlement covers and
deals with all the factual background, including Tripartite
Memorandum of Understanding (MoU) dated 11 September 2004,
threatened strike to call a strike vide notice dated 5 January 2005, the
aspect of compensation already paid, referring to the medically unfit
ex-NOCIL employees in Annexure "C" and the respective payment
made, based upon the VRS Plan "B" in terms of the MoU. It is
specifically mentioned that those who have participated in Early
Separation Plan of RPCL, have also been paid the compensation as per
the Plan.
40 The employees, who were dismissed from the employment, their
names appear in Annexure A and B, as recorded not paid any
::: Downloaded on - 09/06/2013 19:07:11 :::
38 wp-4810-12 - main group-17.sxw
compensation. It is specifically mentioned about the compensation
payable under this Agreement. This covers every sort of employee of
respective groups as mentioned in clause 3 of the Settlement and as
underlined above.
41 All the concerned employees, based upon this Settlement, at the
relevant time, based upon then existing position accepted the
respective compensation as per their class. The Settlement, as
recorded above, has taken care of all the earlier disputes, conflicts
between the parties in most of the issues. Those are specifically
marked and mentioned above. Undisputedly, the respective
employees/workmen have accepted the settlement amount and issued
the necessary receipts also. They gave respective
declaration/affidavit. The contents of the said affidavit/declaration
are not specifically denied nor their respective signatures. The
Settlement and its contents, therefore, acted upon by all the parties
throughout and got the benefits accordingly. The affidavit/declaration
so reproduced and as given and its contents in no way can be
overlooked by the Court for the reasons so averred in the complaint as
well as merely because the ignorance is shown by the concerned
employees, who led evidence on behalf of the other provisions in the
::: Downloaded on - 09/06/2013 19:07:11 :::
39 wp-4810-12 - main group-17.sxw
respective matter. The submission that the declaration and/or the
affidavit so prepared and/or filed in no way is reliable and/or
acceptable for want of legal sanction as contemplated referring to the
law of affidavit if any. This technical objection looses its importance
the moment there is undisputed fact on record that the
Petitioners/employees have actually acted upon and made the
declaration/affidavit accordingly. There is no denial to the signatures
and also the fact that those declaration/affidavit witnessed by some
other employees. The learned Judge, in view of the evidence placed
on record by the parties, oral as well as documentary, gave clear
finding with regard to the same and thereby refused to entertain the
complaints, as well as, the prayers so made.
42 At this juncture, it is necessary to take note of the cases of the
complainants and their individual prayers, based upon the demand so
raised and the point of reference so reproduced above. The party
one, who makes positive averment, needs to prove the same. In the
present case, nothing was mentioned and/or discussed while making
so prayers about the Settlement. It is the Respondent, who in their
submission/defence, referred and pointed out about the Settlement.
The case of the complainant/Petitioner to claim Rs. 16 lacs as
::: Downloaded on - 09/06/2013 19:07:11 :::
40 wp-4810-12 - main group-17.sxw
consequential difference between two schemes i.e. between 2005 and
2006, was based upon the so-called notice dated 14.01.2005. Merely
because some other employee got the additional benefit subsequently,
cannot be the reason to overlook the settlement in question, basically
when there is no prayer whatsoever raised and/or made by them to
challenge the settlement dated 18.06.2005. They knew, when they
filed the complaint itself and/or raised the demand that the concerned
employees themselves have enjoyed the benefit of the settlement.
They knew that they have already given affidavit/declaration to say
that they would not claim and/or litigate further in the matter. The
matter should have ended then and there only on the date of
acceptance of such benefits, based upon the settlement. It is difficult
to accept the case and the submission that they were still employees
and/or workmen as contemplated under the ID Act. Even if, in a
given case, the parties aggrieved by the settlement, they may raised
objection, the Court, based upon the facts and circumstances, may
take note of their grievances and pass appropriate order. In the
present facts and circumstances, though settlements took place in the
year 2005/2006, they raised demand in 2008 in view of the more
amount paid to other person subsequently, based upon their separate
agreement and settlement. It is necessary to note here again that
::: Downloaded on - 09/06/2013 19:07:11 :::
41 wp-4810-12 - main group-17.sxw
when a party arrives at settlement on a particular date and/or time
and having once accepted the same, proceeded accordingly by getting
the benefits arising out of the same, they are bound by it. The
Settlement take care of all the employees, though referring to
individual/separate groups as referred above. Therefore, the class so
created, based upon the settlement are under obligation to accept the
same. We are not concerned with under what circumstances, some of
the employees, in view of the subsequent development which were
definitely not part and parcel of the class who got the benefits of this
settlement, got the more amount. That is different class altogether.
The facts and circumstances of last settlement, even if any, in my view,
just cannot be compared with the settlement already arrived at. This
is also for the reason that it is difficult now to accept the case of the
Petitioner to accept and/or permit them to revoke their own binding
agreement/settlement when they themselves proceeded and acted
upon and gave the respective binding declaration. This goes to the
root of the matter.
43 The averments so made in the complaint as well as evidence so
led, including the demand so initiated and the prayers made, no way
sufficient to destroy and/or disturb the settlement itself as well as the
::: Downloaded on - 09/06/2013 19:07:11 :::
42 wp-4810-12 - main group-17.sxw
contents thereof. It binds all the parties. The demand so raised and
the actual references admittedly revolve around the alleged claim of
the complainants/petitioners referring to one sided notice dated
14.01.2005. There is no case made out by the
complainants/petitioners of any undue influence, fraud and/or
coercion. No pleading to that effect in fact made. The evidence led,
in no way, sufficient to accept the case to overlook the settlement and
pass the order and/or award the amount so demanded by notice dated
14.01.2005, which admittedly, was considered and specifically dealt
with and agreed by the parties in the settlement dated 18.06.2005.
The Petitioners/employees and the parties having once acted upon,
just cannot be permitted and in fact estopped from going back from
their own settlement. The conduct of the Petitioners/employees itself
demonstrate that they admittedly got the benefit and enjoyed the
same for long and, therefore, unable and/or even otherwise could not
be in a position to challenge their own conduct and the binding
settlement in question. Therefore, once it is found and as recorded
above that the subsequent settlement binds all the parties, by
overlooking the same, no relief as demanded and/or prayed in the
complaint, based upon the notice/alleged agreement dated
14.01.2005 can be granted.
::: Downloaded on - 09/06/2013 19:07:11 :::
43 wp-4810-12 - main group-17.sxw
44 The concept of "settlement" is defined in ID Act in Section 2(p),
"workman" in Section 2(s) and "industrial dispute" in Section 2(k).
Section 18 deals with the provisions relating to "Persons on whom
settlements and awards are binding". Section 19 covers the aspect of
"Period of operation of settlements and awards".
45 Admittedly, Settlement dated 18.06.2005 falls under the ambit
of Section 2(p) read with Section 18(3) of ID Act and the relevant rule
62(4), which reads thus :
"62 Memorandum of settlement. - (1)
(2)...
(3) .....
(4) Where a settlement is arrived at between an
employer and his workmen otherwise than in the course
of conciliation proceedings before a Board or a
Conciliation Officer, the parties to the settlement shall
jointly send a copy thereof to the Secretary to the
Government of Maharashtra, Industries and Labour
Department, Bombay, the Commissioner of Labour
Bombay, the Deputy Commissioner of Labour
(Administration), Bombay, the Deputy Commissioner of
Labour, Poona, the Deputy Commissioner of Labour,
Nagpur and the Conciliation Officer concerned."
46 Mr. Kango and Mr. Sabrad, the learned counsel appearing for the
::: Downloaded on - 09/06/2013 19:07:11 :::
44 wp-4810-12 - main group-17.sxw
Petitioners relied on the following judgments :
(I) Nar Singh Pal v. Union of India and others -
(2000) 3 SCC 588- The case was under Section 25-F
of ID Act. It is held that the acceptance of
retrenchment compensation cannot validate and
invalid the order of termination. It is also observed
that fundamental rights cannot be waived nor there
can be estoppel against exercise of fundamental
rights.
(II) J. H. Jadhav v. Forbes Gokak Ltd. -
(2005) 3 SCC 202 - The definition of Industrial
Dispute, Section 2(k) has been elaborated.
(III) Tulip Star Hotels and others vs. Union of
Centaur-Tulip Employees and others - 2007 III LLJ
page 9 - The Apex Court has dealt with Section 28
of MRTU & PULP Act, 1971 and its relevant aspect,
referring to the enforcement of the VRS. The aspect
of relationship of employer/employee has also been
discussed. This matter was remanded by the higher
court.
::: Downloaded on - 09/06/2013 19:07:11 :::
45 wp-4810-12 - main group-17.sxw
(IV) Petroleum Employees Union vs. Industrial
Court, Maharashtra - 1980 (40) F. L. R. page 279 -
Item 9 of MRTU & PULP Act, 1971, referring to
agreement between the parties have been discussed.
The issue of ex-gratia payment in lieu of bonus and
taxation aspect was considered.
(V) Ibrahim Hanif Mulani v. General
Manager, Walchandnagar Industries Ltd. Satara and
anr. - 2002 II CLR 395 - The case was under Section
25-F, 25-G and 25-N of ID Act. It is held that a
settlement cannot decide fate of workmen by
agreeing to terminate their services in violation of
provisions of law. This judgment has been overruled
by a Division Bench reported in 2006 I CLR 810-
Walchandnagar Industries Limited v. Dattusingh
Lalsing Pardeshi.
(VI) Ceat Ltd. (Electronics Division), Mumbai
v. Anand Aba Saheb Hawaldar & ors. - 2003 II CLR
741 - Items 5 & 9 of Schedule IV of MRTU & PULP
Act were in issue. This matter has also been
overruled. [ 2006 I CLR 804 ]
::: Downloaded on - 09/06/2013 19:07:11 :::
46 wp-4810-12 - main group-17.sxw
47 Mr. C. U. Singh, the learned senior counsel appearing for the
Respondents has relied on the following judgments :
(I) National Engineering Industries Ltd. vs.
State of Rajasthan and others - (2000) 1 SCC 371.
In this matter, the Supreme Court has dealt with
Sections 10, 12, 18(1), 18(3), 19 and 2(p) of ID Act. It
is observed in para 4 as under :
"4 On the charter of demands raised by the Workers'
Union and on which the Conciliation Officer had
submitted a failure report, the State Government did
not make any order for reference of the disputes nor did
it refuse to make reference. The Workers' Union then
filed a writ petition in the High Court requiring the
State Government to make reference of their disputes to
the Industrial Tribunal under the provisions of the Act.
This writ petition was decided by a Division Bench of
the High Court on 23-3-1989 whereby it was directed to
the State Government to the Statement to decide the
question on the failure report of the Conciliation Officer
whether to make or not to make the reference.
"The High Court did not agree with the contention
raised by the appellant and dismissed the writ petition.
Aggrieved, the appellant came to this Court. This Court
held that the terms of the settlement could not be
considered to be in any way ex facie, unjust or unfair
and the settlement consequently must be held to be
binding on the workmen who did not accept the
settlement. This Court referred in great detail to the
provisions of Sections 2(k), 2(p) and 18(1) of the Act
and noticed the decision of this Court in Herbertsons
::: Downloaded on - 09/06/2013 19:07:11 :::
47 wp-4810-12 - main group-17.sxw
Ltd. v. Workmen, (1976) 4 SCC 736, where this Court
had said that when a recognised union negotiates with
an employer the workers as individuals do not come
into the picture. It is not necessary that each individual
worker should know the implications of the settlement
since a recognised union, which is expected to protect
the legitimate interests of the labour enters into a
settlement in the best interests of the labour. This
would be the normal rule. ......
Settlement of labour disputes by direct negotiation and
collective bargaining is always to be preferred for it is
the best guarantee of industrial peace which is the aim
of all legislations for settlement of labour disputes.
............. The recognised union having the majority of
members is expected to protect the legitimate interest of
the labour and enter into a settlement in the best
interest of the labour. This is with the object to uphold
the sanctity of settlement reached with the active
assistance of the Conciliation Officer and to discourage
an individual employee or a minority union from
scuttling the settlement. When a settlement is arrived at
during the conciliation proceedings it is binding on the
members of the Workers' Union as laid down by Section
18(3)(d) of the Act. It would ipso facto bind all the
existing workmen who are all parties to the industrial
dispute and who may not be members of unions that are
signatories to such settlement under Section 12(3) of
the Act.
29 ..........This is part from the fact that in our view
reference in itself was bad as the tripartite settlement
did bind the members of the Workers' Union as well.
(II) CEAT Limited v. Anand Abasaheb Hawaldar
and ors. - 2006 I CLR 804 - In para 16 it is observed as
under :
::: Downloaded on - 09/06/2013 19:07:11 :::
48 wp-4810-12 - main group-17.sxw
"16 The factual scenario does not establish any
favouritism or partiality. When VRS I scheme was
introduced same was offered to every employee. It is
nobody's case that there was any hidden intent and/or
that the employer had any previous knowledge at the
time of introducing the scheme that some of the
employees would not accept it. It is not the case of the
complainants that the employer had at that point of
time intended to pay something more to those who did
not accept VRS 1. The memorandum of understanding
which was the foundation for the VRS II, of course gives
a different package, but on the clear understanding that
litigations of all types were to be withdrawn."
(III) Walchandnagar Industries Limited, Satara
vs. Dattusingh Lalsing Pardeshi and ors. - 2006 I CLR
810, wherein it is observed as under :
"67 ...................... The definition of the settlement
does not contemplate that the settlement can take place
only after the industrial dispute has arisen. It can take
place while the industrial dispute is in conciliation
proceedings, the settlement is equally possible and even
after the failure of the conciliation proceeding. We find
that where the employer and employee relationships are
good and sound it is equally possible before initiation of
the industrial dispute as desired under the Rule. Such a
settlement, on the contrary we will have to welcome for
the industrial peace and good relations and
development of the industry.
70 In the Result, both the Letters Patent Appeals are
allowed. The judgment and order dated 19th April 2002
passed by the learned Single Judge of this Court in Writ
Petition Nos. 4730 of 1994 and 4734 of 1994 are hereby
set aside. The original complaints filed by the
respondents are also hereby dismissed.
(IV) WMI Cranes Limited and anr. v. Kush
::: Downloaded on - 09/06/2013 19:07:11 :::
49 wp-4810-12 - main group-17.sxw
Sitaram Chavan & 41 ors. - 2007 I CLR 1020 - In para
68 it is observed as under :
"68 I am of the view that there is a cessation of
relationship between the employer and the employee. It
is doubtful as to whether the complaint of the nature
presented could have been maintained at all. However,
I have proceeded on the basis that assuming such a
complaint could have been maintained, in the present
facts and circumstances, I am of the view that the
allegations of unfair labour practices alleged therein
have not been proved at all. The petitioners cannot be
said to be guilty of commission of unfair labour
practices much less those alleged against them in the
complaint."
(V) Burroughs Wellcom (I) Ltd. v. Jagannath
Namdeo Patel and ors - 2006 (1) Bom. C.R. 812 - In
paras 10, 11 and 12 it is observed as under :
"10 The Apex Court in the case of Vice Chairman &
Managing Director, A.P.S.I.D.C. Ltd & Anr (supra) held
(at para 12 as follows :-
"......When the employees have opted for VRS on their
own without any compulsion knowing fully well about
the Scheme, guidelines and circulars governing the
same, it is not open to them to make any claim contrary
to the terms accepted. It is matter of contract between
the Corporation and the employees. It is not for the
courts to rewrite the terms of the contract, which were
clear to the contracting parties, as indicated in the
guidelines and circular governing them under which
Voluntary Retirement Schemes floated.
11 ........................ In view of the fact that nearly
ninety nine per cent of employees have availed of the
VRS Scheme and have left the companies (FCI & HFC),
::: Downloaded on - 09/06/2013 19:07:11 :::
50 wp-4810-12 - main group-17.sxw
the writ petition no longer survives and has become
infructuous.
48 This type of settlement and its binding effect has been settled
even by the Apex Court in the paragraphs which are already quoted
above in National Engineering Industries Ltd. (supra). The binding
effect of settlement under ID Act has been reiterated. Once the
settlement takes effect, all are governed by the settlement for all the
time to come. [ AIR INDIA Cabin Crew Association and others vs.
Union of India and others, (2012) 1 SCC 619]
49 The observation made in Walchadnagar Industries Limited
(supra) in paragraphs 67 and 70 is also relevant and so also
paragraphs 10, 12 of Burroughs Well com (I) Ltd. (supra).
50 A learned Single Judge of this Court has also recorded in such
situation, the position with regard the relationship between the
employer and employees once the settlement is agreed, signed and
acted upon by the parties in WMI Cranes Limited (supra) in
paragraph 68.
::: Downloaded on - 09/06/2013 19:07:11 :::
51 wp-4810-12 - main group-17.sxw
51 The submission of the learned counsel appearing for the
Petitioners-employees, based upon Nar Singh Pal (supra), in the
present facts and circumstances is of no assistance as in that case, the
issue was acceptance of retrenchment compensation which was stated
to be illegal and invalidate the order of termination. It is observed
and it is settled also that fundamental rights cannot be waived nor
there can be estoppel against exercise of fundamental rights. In the
present case, it is not the question of waiving of fundamental rights
and/or estoppel against the exercise of fundamental rights, specifically
when the Petitioners-employees admittedly knowing their rights at the
relevant time, signed and accepted the said settlement and enjoyed
the benefit arising out of the same. The fundamental rights issue,
even if any, ought to have been considered by themselves at the
relevant time when they arrived at the settlement. As recorded,
there is no specific challenge raised to the settlement, but their
demand was based upon the alleged payment of more money to some
other employees. The aspect of fundamental rights are applicable to
all the parties. The parties knowing their legal and fundamental
rights if themselves, in normal circumstances, proceeded and acted
upon, they are definitely estopped from raising the same now by such
Petition by overlooking their own conduct. The class so created and
::: Downloaded on - 09/06/2013 19:07:11 :::
52 wp-4810-12 - main group-17.sxw
so accepted by the parties based upon the relevant facts and
circumstances at the relevant time, cannot be compared with the class
and/or the employees who got the benefit, based upon the changed
facts and circumstances. The class, therefore, so created, under the
circumstances, in no way, sufficient to accept the case of the
Petitioners as demanded and as prayed. Everything is different and so
also the circumstances.
52
J. H. Jadhav (supra), as referred and relied upon by the
learned counsel appearing for the Petitioners, principally referring to
the concept of "industrial dispute" as contemplated under Section 2(k)
of the ID Act is also of no assistance. The concept so settled need no
further discussion. The requirement is the facts and circumstances of
the case to consider the rival submission raised by the parties. The
Petitioners, if unable to destroy and/or unable to justify their case
revolving around letter dated 14.01.2005 and admittedly they
accepted the benefits and acted upon the settlement and also gave
clear declaration/affidavit and declared not to challenge the same
and/or to waive their rights, definitely snapped the relationship of
employer and employees themselves. They, in no way, can be stated
to be still in service of the Respondent. The relationship, as
::: Downloaded on - 09/06/2013 19:07:11 :::
53 wp-4810-12 - main group-17.sxw
contemplated and as required, if crystalised and/or ceased by their
own or by the party's volunteered action resulted into various signed
documents, ends it.
53 Tulip Star Hotels (supra) was another citation read and
referred by the learned counsel appearing for the Petitioners. In that,
the Apex Court has dealt with Section 28 of MRTU & PULP Act, 1971
and its relevant aspects referring to the enforcement of the VRS. The
aspect of relationship, though discussed, but considering the facts and
circumstances of the present case and no such situation was there, no
way assist the Petitioners to accept their case by overlooking the
binding settlement. The learned counsel appearing for the
Respondent pointed out that the matter was remanded by the higher
court.
54 Petroleum Employees Union (supra) again referred to Item 9 of
MRTU & PULP Act, 1971, where an issue of ex-gratia payment in lieu
of bonus and taxation aspect was considered, is also of no assistance.
The facts and circumstances were totally different, distinct and
distinguishable.
::: Downloaded on - 09/06/2013 19:07:11 :::
54 wp-4810-12 - main group-17.sxw
55 The learned counsel appearing for the Petitioners has strongly
relied on Ibrahim Hanif Mulani (supra) even before the Industrial
Court. That was a case under Section 25-F, 25-G and 25-N of the ID
Act. It is quite settled that a settlement cannot decide fate of
workmen, agreeing to terminate their services in violation of the
provisions of law. The validity of the same, in a given case, if material
placed on record, can be tested by the Court. In the present case,
considering the similar averments made in the complaint, referring to
the demand letter and the point of reference made, the common
evidence led by the parties, no where based on the foundation of
breach of any provisions of law. The parties, admittedly, based upon
then existing facts and circumstances, agreed and settled the matter
which was never stated and/or alleged to be contrary to any
provisions of law and in fact got the benefit out of it, now just cannot
be permitted to say to overlook it and grant the additional benefit so
claimed. It appears that they got disturbed and felt injustice as
subsequently, some employees, in different circumstances, received
much higher compensation. Therefore, though some allegations were
made about unfair treatment, pressure but unable to support it also
because of their conduct and the lapse of period/time. All were
recipient of the compensation based upon the situation of relevant
::: Downloaded on - 09/06/2013 19:07:11 :::
55 wp-4810-12 - main group-17.sxw
time being the different classes of employees.
56 Apart from this, the submission is also made by the Senior
Counsel for the Respondent, referring to Walchandnagar Industries
Limited (supra) that the said judgment is overruled by a Division
Bench of this Court.
57 The judgment cited by the learned counsel for the Petitioner in
Ceat Ltd. (supra) referring to Items 5 and 9 of Schedule IV of MRTU
& PULP Act as pointed out is also overruled in 2006 I CLR 804 -
Ceat Ltd. vs. Anand A. Hawaldar (supra).
58 Another aspect is that admittedly the Respondent placed on
record settlement dated 18.06.2005. The learned Industrial Court,
as both the parties made their rival submissions and tested the
evidence so led in which no way able to destroy and/or destruct the
contents of the settlement (C-4), its annexures, the receipts, and
other connected documents, i.e. the respective affidavits, application
and letter dated 10.07.2007. Annexures "A" to "F" and the
names and the signatures of workmen, who have accepted
the terms of the settlement rightly considered and just
cannot be overlooked. Annexure "A" shows the list of 21 ex-NOCIL
::: Downloaded on - 09/06/2013 19:07:11 :::
56 wp-4810-12 - main group-17.sxw
employees belonging to Non-SSC Non-Technical category. Annexure
"B" shows list of 19 ex-NOCIL workmen belonging to SSC Non-
Technical category, Annexure "C" is the list of 34 ex-NOCIL declared
unfit for employment by RPCL, Annexure "D" is the list of dismissed
workmen, who do not desire to accept the settlement as on date.
Annexure "E" is the list of four unfit persons who do not desire to
accept the settlement as on date. Annexure "F" is the list of
individual ULP complaints. There is a list referring to names and
signature of workmen who have accepted the terms and above
settlement. It shows that the employees in fact voluntarily accepted
the terms and conditions and signed the document. It is not in
dispute that this list became part and parcel of the settlement in
question and duly proved in the Courts, with its contents. There is no
specific denial of the signature and acceptance of those terms and
conditions apart from the individual receipts of the amount. The
relevant receipts, cheque, affidavit/declaration, just confirm the case
of Respondent/management revolving around the binding settlement
and its effect. Some casual challenge, here or there and showing
ignorance to the basic document by the key witness, by overlooking
these documents and such conduct of all the employees itself destroy
their own case, which they sought to be placed on record in favour of
::: Downloaded on - 09/06/2013 19:07:11 :::
57 wp-4810-12 - main group-17.sxw
their demand and/or prayers. The inconsistent stand & even if
challenged indirectly, on the ground that these Annexure were not the
part of the original settlement and, therefore, ought not to have been
and/or should not be accepted, in no way, support their case to grant
the benefits/demands based upon the Notice/letter dated 14.01.2005.
They themselves unable to support the case revolving around their
own demand, in view of the undisputed position on record as referred
above. The rejection of all the References by the learned Judge, in my
view, need no interference.
59 The Petitioners have filed these Petitions though titled and
referred to Articles 226 and 227 of the Constitution of India, the fact
remains that the impugned order that they have challenged is of
Industrial Court. The scope and purpose of Article 227 is
unrestricted if case is made out, but it is also restricted, if no case is
made out. The facts and circumstances, based upon the record and
the law have been considered. There is no case of illegality or
perversity and/or any breach of principle of natural justice and/or
even any breach of any agreed terms and settlement. The order is
well within the frame work of law and the record and the settlement.
::: Downloaded on - 09/06/2013 19:07:11 :::
58 wp-4810-12 - main group-17.sxw
60 The learned Judge has considered to some extent even the
merits of the matter, based upon the evidence so led. The relevant
portion and the reasoning so given have been dealt with in detail.
However, having once noted the effect of settlement dated 18.06.2005
any prior action and/or activities as referred and discussed referring
to the respective groups and/or matter looses its importance. If
letter/notice dated 14.01.2005 goes and the settlement dated
18.06.2005 has attained finality, the demand so raised in 2008, in no
way, sufficient to reopen the merits of the closed issues/matters. No
case is made out by the Petitioners to overlook this settlement and
consider their case on merits, based upon the prior events referring to
letter dated 14.01.2005. The alleged information through the Right
to Information Act, 2005 in no way sufficient to destroy and/or
supersede and/or take away the accrued rights of both the parties.
All are bound by it. There remains no `industrial dispute' as these
employees ceased to be the `workmen'.
61 It is relevant to note and as noted, it is only because of payment
of about Rs. 22 lacs as financial compensation to other employees in
the year 2006 by the management, the Petitioners in all the matters
wants to claim the benefits as per the letter dated 14.01.2005 and
::: Downloaded on - 09/06/2013 19:07:11 :::
59 wp-4810-12 - main group-17.sxw
raising the claim of Rs. 16 lacs towards the difference. This, in no
way, sufficient reason to overlook and/or revoke the settlement. As
already noted, no other challenges and/or grounds raised in the
complaints as well as even in the Petitions, except making averments
about tremendous physical, mental as well as social harassment to
submit their resignation and leave the employment. They failed to
prove any of these grounds by any material. The complaints,
therefore, so filed and the submissions so raised, in my view, also are
not sufficient to accept their cases. However, it is made clear that
parties are still at liberty to settle the matter but the Court, in no way,
for want of material on record, and as recorded interfere and/or
revoke the settlement already arrived at and as both the parties have
in fact acted upon at the relevant time. There is no even prayer to the
effect that the settlement is null, void and/or bad in law as they have
already got the benefit out of the same.
62 The learned counsel appearing for the Petitioners referred and
pointed out that the learned Industrial Court has decided and/or
dismissed the individual Reference by Common Order, by referring to
separate Award, as referred above, yet in the operative part of the
order, some reference numbers are missing. Rule 31 of the Industrial
::: Downloaded on - 09/06/2013 19:07:11 :::
60 wp-4810-12 - main group-17.sxw
Disputes (Bombay) Rules, 1957 which is reproduced as under, permits
the Board, Court, Labour Court, Tribunal or Arbitrator to suo motu or
on an application made by any of the parties concerned correct any
clerical mistake or error arising from an accidental slip or omission in
any award so passed, or issues.
"31 Correction of errors. - A Board, Court,
Labour Court, Tribunal or Arbitrator may at any time
suo motu or on an application made by any of the
parties concerned correct any clerical mistake or error
arising from an accidental slip or omission in any
award it or he issues."
63 Following are the cases/reference numbers which are missing in
the operative order of the Industrial Tribunal.
Sr.No. Writ Petition No. Case No. Name of the Petitioner
1 7689/2012 12/2009 Bhushan Govind Parab.
2 7681/2012 14/2009 Mahendrasing Ram Thakur
3 8360/2012 17/2009 Suresh Shriram Dhanawade
4 8361/2012 18/2009 Narayan Dhaku Shigwan.
5 7690/2012 23/2009 Raghunath Maruti Dhone.
6 7684/2012 26/2009 Arun Laxman Kulkarni
7 7680/2012 07/2009 Pandharinath S. Patil
8 7682/2012 25/2009 Naresh Daulat Mahadik
::: Downloaded on - 09/06/2013 19:07:11 :::
61 wp-4810-12 - main group-17.sxw
64 As per the learned counsel appearing for the Petitioners, some
Reference numbers are missing, though they were party to the
proceedings and these cases are also covered by the judgment in all
respects. There is no serious dispute so far as this part is concerned
that their cases/complaints/References are governed and covered by
those References. The missing numbers in the operative part, in my
view, therefore is apparent error. Rule 31 of the Rules, if permits the
Court to pass an appropriate order, therefore, there is no reason that
this Court while disposing of all these Petitions by the common
judgment/order, cannot direct to correct and/or to add Reference
numbers in the respective Awards. All the Petitions are heard and
being disposed of by this common Judgment, I am inclined to observe
that these Petitions are also disposed of by this common judgment in
all respects, treating their References as a part and parcel of the
operative part of the order. The appropriate correction deemed to
have been made accordingly. There is no reason to keep these
Petitions pending only for so-called correction so referred. The other
such Petitions are also disposed off accordingly.
65 Though the basic facts and circumstances are referred and
relied upon of Writ Petition No.4810/2012, but as recorded above,
::: Downloaded on - 09/06/2013 19:07:11 :::
62 wp-4810-12 - main group-17.sxw
this covers all the matters and the writ petitions of all the groups of
the Petitioners/employees in question. In every matter, the admitted
settlement dated 18.06.2005 is involved. All are covered and
governed by the same. The evidence was led accordingly apart from
their respective group case, as referred in earlier paragraphs. I am
inclined to dispose of by this common Judgment all other Writ
Petitions on same grounds and similar reasons in all respects. Both
the parties still entitle to settle the matter to end the dispute.
66 Resultantly the following order:
ORDER
(a) All the Writ Petitions are dismissed.
(b) The parties are still at liberty to settle the matters.
(c ) There shall be no order as to costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 19:07:11 :::