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Wipro Karamchari Sangh Union vs M/S Wipro Enterprises Pvt. Ltd. on 7 February, 2023

Bench: Dinesh Maheshwari, Sanjay Kumar

     ITEM NO.16                         COURT NO.6                  SECTION XIV

                              S U P R E M E C O U R T O F       I N D I A
                                      RECORD OF PROCEEDINGS
     Petition(s) for Special Leave to Appeal (C) No(s).1867/2023

     (Arising out of impugned final judgment and order dated 09-01-
     2023 in CMP No.17615/2022 passed by the High Court Of Himachal
     Pradesh At Shimla)
     WIPRO KARAMCHARI SANGH UNION                                    Petitioner(s)

                                                VERSUS

     M/S WIPRO ENTERPRISES PVT. LTD.                                 Respondent(s)

     (FOR ADMISSION and I.R. and IA No.16377/2023-EXEMPTION FROM
     FILING C/C OF THE IMPUGNED JUDGMENT
      IA No. 16377/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
     JUDGMENT

IA No. 18926/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 07-02-2023 This matter was called on for hearing today. CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE SANJAY KUMAR For Petitioner(s) Ms. Radhika Gautam, AOR Mr. Nishant Khiddta, Adv.

Ms. Anjali Dubey, Adv.

For Respondent(s) Mr. C. U. Singh, Sr. Adv.

Mr. Gulshan Chawla, Adv.

Ms. Kanupriya Chawla, Adv.

Mr. Vibhav Mishra, Adv.

Mr. Ekansh Bansal, AOR UPON hearing the counsel the Court made the following O R D E R The challenge herein to the order dated 09.01.2023, as passed by the High Court of Himachal Pradesh at Shimla in CMP No. 17615 of 2022 in CWP No. 3343 of 2022, is practically the second round in this Court in relation to the same subject-

matter, being interim relief during pendency of Reference No. 15:30:35 IST Reason:

180 of 2021 before the Industrial Tribunal-cum-Labour Court, 1 Shimla. In a brief reference to the relevant background, it could be noticed that prior to the said reference, an application of petitioner-Union under Section 33-A of the Industrial Disputes Act, 1947 was allowed by the Labour Court on 09.12.2021. As against the order so passed by the Labour Court, the respondent-Company has preferred a writ petition, being CWP No. 322 of 2022 and therein, the High Court stayed the operation of order impugned. The said writ petition remains pending in the High Court.

In the meantime, the appropriate Government referred the dispute arising from demands raised by the petitioner-Union under demand notice dated 27.04.2021 to the Labour Court, which is registered as Reference Case No. 180 of 2021. Therein, on 11.05.2022, the Labour Court accepted an application made by the petitioner-Union (being an interim application No. 9 of 2022) for restraining the respondent-company from shifting the machines from one place/unit to another and from compelling 33 workmen to perform the work of packing and lifting of material in PCP section. The said order dated 11.05.2022 has been challenged by the respondent-company in the High Court by way of CWP No. 3343 of 2022. By an order dated 27.05.2022, the High Court admitted this petition for hearing along with the previously pending CWP No. 322 of 2022 and in the interim, stayed the operation of impugned order dated 11.05.2022.

The said order dated 27.05.2022 was questioned by the petitioner-Union in SLP(C) No. 10390 of 2022 wherein, this Court passed an interim order on 02.06.2022, directing status quo to 2 be maintained. The said SLP was decided on 13.12.2022, with this Court permitting the petitioner to file appropriate application for recall/modification of the interim order before the High Court. Pursuant to the order so passed by this Court, the petitioner-Union moved an application seeking vacation of the interim order. The High Court, while taking note of the background aspects and contention of the parties, found no merit in the application for recall/modification and rejected the same by the impugned order dated 09.01.2023. The relevant operative portion of the impugned order dated 09.01.2023 reads as under:

“17. During the pendency of Reference No. 180 of 2021, Unit approached the learned Labour Court by way of interim Application No. 9 of 2022, seeking restraint order against the Company not to shift the machines from Unit-II and also not to place the members of Union in any other Section of Unit-II than the Section in which they were working. The prayer so made by the Union in Application No. 9 of 2022 prima-facie appears to be not relatable to the matter in issue in Reference No. 180 of 2021. It is trite that the scope of interim relief cannot be beyond or outside the four walls of the relief in the main proceedings. In any case, the interim relief has to be necessarily relatable to the issue pending for adjudication. In Reference No. 180 of 2021, the issue pertains to legality of orders of transfer of the members of Union from Unit-II to Unit-I. Even if the Union succeeds in securing the relief in terms of prayer made by it in Reference No. 180 of 2021, the members of the Union will stay and continue to work in Unit-II. In such view of the matter, it is not comprehensible as to how the shifting of machines or placement of workmen in another Section of the same Unit will prejudice the rights of the Union or its members in pending Reference No. 180 of 2021. The impugned order on this count prima- facie appears to be an illegal order.

18. The order impugned in CWP No. 3343 of 2022, thus if allowed to operate will have comparatively harsher effects on the rights of the Company as compared to the rights, if any, of the Union. Order dated 11.5.2022, passed by learned Labour Court, which is subject matter of CWP No. 3343 of 2022, itself is an interim order and thus there cannot be any legal impediment for staying the operation of such order, also by way of an interim 3  order, in exercise of writ jurisdiction of this Court, if the impugned order prima-facie appears to be wrong, harsh and inequitable.

19. In light of above discussion, we find no merit in the application and the same is accordingly dismissed.” Being aggrieved by the aforesaid, the petitioner-Union has approached this Court over again and with the submissions that not vacating of the stay order of the High Court is likely to cause serious prejudice to its members.

During the course of submissions, in response to the observations as also queries of the Court, learned senior counsel appearing for the respondent has submitted that the respondent stands advised to not only reiterate the specific assurances stated in their communication dated 06.05.2021(Annexure-P-4) but also to submit further an undertaking so as to safeguard the interests of the workmen concerned and to dispel their apprehensions. At request, the matter was passed over, to be taken up in the second call. Now, an undertaking has been filed on behalf of the respondent, signed by the Factory Manager, being their authorized representative.

The relevant part of the assurances, as stated in the aforesaid communication dated 06.05.2021, read as under:

“As already discussed and informed, that keeping in mind the business viability and making our products cost effective, management is in the process of consolidating soap manufacturing/ production operations at our Unit-I situated at Plot No. 77, EPIP, Phase-1, Jharmajri, Baddi(HP), whilst ensuring that every workmen are gainfully employed. However, in spite of our best efforts to communicate the same, we are in receipt of your letter dtd.27th Apr’21 and in this regard, please find herewith point wise reply to your letter under 4  reference:-

1. We would like to re-iterate that being a responsible and law abiding employer we shall abide by all the agreed terms and condition(s) arrived between the Management & the Workmen representative vide above Settlement dated 25.01.2018 valid till 31st Dec’21. In Part A of the said settlement under reference, Workmen had also agreed to extend their whole hearted support and cooperation in the implementation of its plan for rationalization of work methods/ Manpower deployment.

Needless to mention that there is no any binding clause on the management limiting them not to transfer any employee prior to expiry of the term of the settlement under reference.

2. We would like to re-assure you that there won’t be any change in remuneration or facilities w.r.t. the workmen concerned, as already agreed vide the settlement under reference, on account of transfer and all the terms and condition(s) of the settlement shall continue as it is.

3. We would also like to put on records that the other Factory at Baddi situated in Plot No. 77, is in the same village and is just at a distance of approx. 500-600 mtr. from the current factory, and hence the same definitely won’t warrant shifting of current accommodation, and any allied request thereof, as specified in your letter.” Further, in the undertaking filed on behalf of the respondent today, it is stated as under:

“I, Ankush Kichloo, s/o Shri H.K. Kichloo, aged about 41 years, resident of Flat No.503, Cosmos Block, Amravati Enclave, Panchkula, Haryana, presently working as Factory Manager of M/s Wipro Enterprises Pvt. Ltd., 77, EPIP, Phase-I, Jharmajri, Baddi, Himachal Pradesh.

1. I am the authorized representative of the Respondent Company and as such competent to file this undertaking on behalf of the Respondent Company.

2. I undertake that because of the shifting of the machinery, the Respondent Company will not change the condition of services applicable as on date in respect of 126 Workmen during the pendency of CWP No.3343/2022 pending before the Hon’ble High Court of HP, Shimla.

3. I further undertake that the Company shall continue to abide by the service conditions and settlement agreement dated 25.01.2018 signed between the Workers Union and the Management of the Respondent Company existing as on today.

 4. I further undertake that the Company will not change any remuneration or any other facilities with respect to 126 Workmen as already agreed upon and being applicable as on date.

Date: 07.02.2023. Sd/-

Ankush Kichloo Authorised Representative of the Respondent Company” In view of specific assurances stated on behalf of the respondent in the aforesaid communication dated 06.05.2021 coupled with the undertaking stated before us, we are satisfied that all the material and relevant aspects of the legal grievances and apprehensions of the petitioner are taken care of.

However, taking note of the submissions made on behalf of the petitioner and the fact of pendency of the labour dispute in Reference No.180 of 2021, while accepting the aforesaid assurances and undertaking on behalf of the respondent, we deem it appropriate to additionally provide that any process of shifting/relocation of the machinery, by itself, shall neither operate against the legal rights of the members of the petitioner-Union nor the respondent shall be entitled to claim any equity or legal right on that basis; and such shifting/relocation shall have no bearing on the labour dispute pending in Reference No.180 of 2021.

In order to avoid any ambiguity, we further deem it appropriate to provide that the pending labour dispute shall be dealt with and the reference shall be finally answered on its own merits by the Labour Court.

6  The petition stands disposed of accordingly. All pending applications also stand disposed of. (GAGANDEEP SINGH CHADHA) (RANJANA SHAILEY) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH) 7