Bombay High Court
Aurobrite (India) Pvt. Ltd. vs Shankar Genu Kelkar And Ors. on 9 February, 1994
JUDGMENT
Pendse. H.
1. The appellant is a private company and runs a factory for manufacture of plastic moulds and various other articles. The appellant employs over hundred workmen in the factory. The workers were members of General Employees Union, a trade union registered under the Trade Unions Act. It is the claim of the respondents that the respondents resigned from the General Employees Union and joined Maharashtra General Kamgar Union with effect from November 1, 1981. There is dispute between the employer and the respondents as to how many members joined Maharashtra General Kamgar Union, but it is not necessary to reflect upon the dispute in the present proceeding.
2. On August 21, 1981 the appellant served notice upon the General Employees Union in accordance with section 9A of the industrial Disputes Act, 1947, communicating the intention to effect changes specified in the annexure to the notice with effect from September 21, 1981. The annexure to the notice recites that the appellant will introduce a maintenance section of the factory. The workmen attached to the maintenance section will be given their weekly off on a specific day other then the weekly off day on which the factory remains closed. The notice further recites that on a day when there is no work in the maintenance section the workmen will be assigned jobs in the production department. The notice finally recites that the workmen who will be in the maintenance staff will not be more than 16. After service of notice upon the General Employees Union certain disputes were raised but ultimately a memorandum of settlement was signed on 20-10-1981 in accordance with section 2(P) read with 18(1) of the Industrial Disputes Act. The terms of settlement between the appellant and the Union provided that the appellant and the Union provided that the appellant shall be at liberty to after weekly off of the workmen employed in the maintenance section. It was further agreed that the appellant shall give substitute weekly off on a specific day of the week and the appellant shall pay compensatory allowance of Rs. 6/- per workmen of that day. In pursuance of the settlement 16 workmen were allotted to the maintenance section and respondent Nos. 1 to 7 are amongst the 16.
3. The respondents accepted the alternate off day given by the appellant instead on Thursday which was a holiday for the factory but declined to work on Thursday. The respondents claim that they are not prepared to observe the staggering weekly off. The respondents claim that the settlement reached between the appellant and General Employees Union is not binding on them. As the respondents declined to work on the as which were not weekly off days, the appellants was left with no choice but to serve notices on these respondents calling upon them to attend to the duties. The notices received no response and thereupon on January 8, 1982 the services of the respondents came to be terminated. The respondents were offered their salaries due but the respondents refused to accept the same. The order of termination served upon the respondents is an order of simple discharge and it does not reflect that any punitive action is taken. The respondents sought reference to the Labour Court and separate references wore made to the Labour Court in respect of each of the respondents.
Before examining what transpired in the reference it is required to be stated that the Maharashtra General Kamgar Union, of which the respondents claim to be member, gave a strike notice in respect of change effected and resorted to the strike. The employer thereupon filed complaint/reference No. (ULP) 19 of 1982 before the Labour Court and the Labour Court by order dated April 1, 1982 declared the strike to be illegal under the provisions of section 24(1)(i) read with the provisions of section 23 of the M. R. T. U. and P. U. L. P. Act. 1971. The revision application filed by the Maharashtra General Kamgar Union before the Industrial Court ended in dismissal.
4. The reference made on behalf of the respondents were heard together and common evidence was recorded. It was claimed on behalf of the workmen that the settlement signed between the General Employees Union and the Company was not binding upon the respondents and the respondents wore not bound to accept the changes effected by the change notice. The respondents claim that the termination of their services amounts to retrenchment and the Company has failed to comply with the requirements of section 25-F of the Industrial Disputes Act. The workmen claimed reinstatement with full back wages and continuity of their service. The appellant resisted the claim by pointing out that the settlement entered into with the General Employees Union is binding upon the workmen and the respondents had never challenged the change notice. The company further claimed that out of the 16 only the present seven respondents started availing the staggering weekly off day i.e. on Thursday but declined to report to work on the remaining days. The appellant claimed that the services of the respondents were terminated by way of simple discharge in accordance with the model standing orders and the claim of reinstatement and back wages cannot be granted. The parties led oral evidence before the Labour Court to establish that the order was really one of simple discharge and did not amount to punishment. The Labour Court came to the conclusion that the order of termination does not amount to punitive order or an illegal action and the workmen are not entitled to reinstatement. The Labour Court further held that the claim of the respondents that the settlement dated October 20, 1981 was not binding upon them is not correct.
5. The workmen filed writ petition No. 2356 of 1987 on the Original Side of this Court under Article 226 of the Constitution of India to challenge the correctness of the order passed by the Labour Court in seven different references. The learned Single Judge by judgment dated July 9, 1992 held that the order of termination was merely a discharge simplicitor and the company was left with no option but to terminate the services of the respondents as the respondents were not prepared to work as per the notice of change read with the settlement. The learned Single Judge further held that despite the notice given the respondents consistently refused to work right from October 21, 1981 upto January 10, 1982. The learned Single Judge further held that it was not open for the workmen to refuse to work as per the changed service conditions. The learned Single Judge held that the findings recorded by the Labour Court were pure findings of fact and were not required to be disturbed in exercise of writ jurisdiction. After holding that the order of the Labour Court does not suffer from any infirmity, in the last paragraph of the judgment the Learned Single Judge observed that since the order of termination was passed without holding any enquiry the ends of justice would be met if the respondents were paid wages from January 8, 1992 upto the date of the award dated March 24, 1987 passed by the Labour Court. This final direction, directing the appellant to pay the wages has given rise to filing of the present appeal. The respondents have filed cross-abjections claiming that the learned Single Judge ought to have granted reinstatement with full back wages.
6. Mr. Ganguli, learned Counsel appearing on behalf of the respondents-workmen, in support of cross-objections, submitted that the appellant did not hold any enquiry before serving the notice of termination. The learned Counsel urged that the respondents were not bound by the settlement reached by the appellant with the General Employees Union as they had ceased to be the members of that union. Mr. Ganguli submitted that although the workmen did not challenge the change notice served by the appellant, still as the settlement was not binding it was open for the respondents to refuse to work in accordance with the changed conditions of service. Mr. Ganguli also urged that the appellant terminated the services of the respondents because of the alleged misconduct of the workmen-respondents in not attending to work and the services could not have been terminated by the appellant for the alleged misconduct but for holding an enquiry. It is not possible to accept the submissions of the learned Counsel. Both, the Labour Court and the learned Single Judge, have concurrently found that the model standing order applicable to the employees clearly enable the employer to terminate the services as a simple discharge. The claim of Mr. Ganguli that the services were terminated because of the alleged misconduct of the workmen in not attending to work as per the change notice is not accurate. Out of the 16 workmen allotted to the maintenance section 9 workmen did not object to the change of service conditions and only the respondents refused to carry out the work in accordance with the change notice. The appellant served more than one notice upon the respondents calling upon to attend to the work, but the respondents persistently refused to attend to the work by claiming that the change effected by service of change notice under section 9A of the Industrial Disputes Act is not binding upon them. Mr. Ganguli had to concede that the workmen did not challenge the change notice and consequently it was not open for the workmen to refuse to work in accordance with the notice. The question as to whether the settlement is binding upon the workmen need not detain us because the notice of change was obviously binding upon the workmen need not detain us because the notice of change was obviously binding upon the workmen. In our judgment both, the Labour Court and the learned Single Judge, were perfectly justified in concluding that the workmen had deliberately refused to attend to work and consequently the appellant-company was left with no choice but to terminate the services of the respondents. The contention of Mr. Ganguli that the termination amounts the imposition of penalty is not correct. The fact that the workers declined to attend to work is not in dispute and the reason for not attending to work is entirely unsustainable. Mr. Ganguli then urged that it was not open for the Labour Court to permit the company to justify the action by leading evidence. The contention is not correct, it has been repeatedly held that it is open for the employer to lead evidence to establish that order of termination is one of simple discharge and does not amount to punishment. On the evidence led by the employer it is open for the Labour Court to determine whether the conduct of the workmen was justified or was otherwise. In our judgment the findings recorded by the Labour Court and the learned Single Judge do not suffer from any infirmity and the cross-objections must fail.
7. Mr. Verma, learned Counsel appearing on behalf of the appellant, submitted that after upholding all findings of fact recorded by the Labour Court, the learned Single Judge was in error in awarding wages on the ground that the order of termination was passed without holding any enquiry. We find considerable merit in the submission of the learned Counsel. The learned Single Judge agreed with the finding of the Labour Court that the order of termination was one of simple discharge and did not amount to imposition of penalty and consequently enquiry was not necessary. It is difficult to appreciate then how the workmen can be awarded wages for the period from the date of termination till the date of passing of the award by the Labour Court on the basis that enquiry was not necessary. It is difficult to appreciate than how the workmen can be awarded wages for the period from the date of termination fill the date of passing of the award by the Labour Court on the basis that enquiry was not held before passing order of discharge. Mr. Ganguli referred to the decision in the case L. Robert D'Souza v. Executive Engineer, Southern Rly. reported in A. I. R. 1982 S. C. 854 and especially to paragraph 21 of the judgment. In our judgment on the facts and circumstances of the case the exercise of powers to award wages was totally incorrect. The learned Single Judge could not have awarded wages to the respondents after recording a finding that the order of termination was one of simple discharge. In our judgment the appeal is required to be allowed and the decision given by the learned Single Judge awarding wages is required to be set aside.
8. Accordingly, appeal is allowed and the direction given by the learned Single Judge by judgment dated July 9, 1992 in writ petition No. 2356 of 1987 directing the appellant to pay wages of the period commencing from January 8, 1992 and ending with March 24, 1987 to the respondents-workmen is set aside. Rest of the judgment of the learned Single Judge is confirmed. Cross-objections filed by the respondents are dismissed. In the circumstances of the case, there will be no order as to costs both of the appeal as well as cross-objections. Bank guarantee furnished by the appellant to stand discharged.