Writ Petition No. 2513 of 2006. Case: General Employees' Union Vs Inter-Gold (I) Pvt. Ltd.. High Court of Bombay (India)
| Case Number | Writ Petition No. 2513 of 2006 |
| Counsel | For Appellant: R.D. Bhat, Adv. and For Respondents: Sudhir Talsania, Senior Advocate, Amit Dutia and Mahesh Londhe i/by Sanjay Udeshi & Co. |
| Judges | R. M. Savant, J. |
| Issue | Constitution of India - Article 226; Indian Contract Act, 1872 - Section 23; Industrial Disputes Act, 1947 - Sections 10, 12(3), 18, 18(1), 18(3)(d), 2(cc), 2(p), 25, 25(O), 9(A) |
| Judgement Date | November 19, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
R. M. Savant, J.
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The writ jurisdiction of this Court under Article 226 of the Constitution of India is invoked against the judgment and order dated 29/07/2006 passed by the learned Member, Industrial Court, Mumbai, by which order the Complaint (ULP) No. 317 of 2005 came to be disposed of and the Complaint (ULP) No. 428 of 2005 came to be dismissed.
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The facts necessary to be cited for adjudication of the above Petition can be stated thus: -
Respondent No. 1 in both the Complaints i.e. Complaint (ULP) No. 317 of 2005 and Complaint (ULP) No. 428 of 2005 is M/s. Inter-Gold (I) Pvt. Ltd. which had a diamond division. In the said diamond division about 450 workmen were employed. The said workmen were owing allegiance to Bhartiya Kamgar Sena (hereinafter referred to as "BKS" for short). The said BKS was a recognized union in so far as Respondent No. 1 is concerned. The said BKS had filed Complaint (ULP) No. 317 of 2005 against the Respondent No. 1 and its Directors invoking items 5, 6 of schedule-II and items-2, 3, 9 and 10 of schedule-IV of the MRTU and PULP Act, 1971. The said BKS as a recognized union had entered into settlements with the Respondent No. 1 in respect of the service conditions of the workmen. The last of such settlements was dated 25/09/2002 which was for the period from 01/10/2001 to 30/09/2005. The said settlement was accepted by all the workmen and was signed by the BKS as a recognized union with the Respondent No. 1-Company. The cause for filing the said complaint was the action of the Respondent No. 1 Company of inviting the committee members of the BKS on 18/06/2005 for a meeting and informing them that the company has decided to close-down its existing diamond unit at SEEPZ and to shift the entire business activities relating to diamonds to Kandivli in its new establishment known as M/s. Inter-Gold Diamonds Pvt. Ltd. During the course of discussion with the committee members it seems that the Respondent No. 1 had offered a memorandum of settlement referable to Section 2(p) read with Section 18(1) of the Industrial Disputes Act. However, the said settlement was opposed to on behalf of the committee members of the BKS. The main objection to the proposed settlement was that in terms of the settlement dated 25/09/2002 for the transfer of the workmen from one unit to other i.e. from the Respondent No. 1-Company to its associate/subsidiary company it was agreed that the Respondent No. 1-Company will discuss with the committee members about the modalities and the procedure for transfer, but this assurance was not abided by and suddenly the workmen were given the option about shifting and transfer to Kandivli. It was therefore the case of the BKS in the said complaint that the Respondent No. 1 was using pressure tactics and that there was an attempt by the Respondent No. 1 to declare a lock-out in so far as the diamond division is concerned. The said complaint was therefore filed for a declaration of unfair labour practice committed by the Respondent No. 1 and consequential reliefs to direct the company to cease and desist from the unfair labour practice; to restrain the company from the change in service conditions of the workmen; to direct the company to give all the status, benefits and the privileges arising out of the settlement dated 25/09/2002; to restrain the company from terminating the services of the concerned workmen and not to transfer to M/s. Inter-Gold Diamonds Pvt. Ltd. at Kandivli; to restrain the company from compelling the workmen to sign the proposed memorandum of settlement; direct the company to give regular entry, work and wages as per last several years practice and other facilities; and lastly to direct the Respondent No. 1 to negotiate, bargain and sign the settlement and to take consent on or before making any change in any manner in respect of service conditions of the concerned workmen.
It appears that in the said complaint, an application for interim relief was moved by the complainant BKS on which application an order of directing the Respondent No. 1-Company to maintain status quo till the disposal of the interim application was passed. The said application for interim relief was opposed to on behalf of the Respondent No. 1 by contending that in terms of the settlement dated 25/09/2002 and especially clause-17 thereof the transfer of the workmen to any unit, establishment of the company even outside Mumbai was permissible. It was contended that because of the business exigency the Respondent No. 1 had decided to shift its activities relating to diamond manufacturing to Kandivli in one of its associate companies and therefore there was no question of any unfair labour practice.
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The dispute between BKS and Respondent No. 1 came to be settled on account of the settlement dated 17/08/2005 which was arrived at with the BKS in furtherance of the settlement dated 25/09/2002. In view of the said settlement dated 17/08/2005 a pursis came to be filed in the Industrial Court on 26/08/2005 that the parties have settled the matter on the basis of which the ad-interim order of status quo which was passed by the Industrial Court came to be vacated.
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After the said order of status quo came to be vacated, the Petitioner herein i.e. the General Employees Union (for short hereinafter referred to as "GEU") filed a complaint being Complaint (ULP) No. 428 of 2005 in the Industrial Court invoking item Nos. 1(a), (b), 2(b), 4(c) and 6 of schedule-II and item Nos. 3, 5, 9 and 10 of schedule IV of the MRTU and PULP Act, 1971. It was the case of the said union that out of 450 workmen who were working with the diamond division, majority of the workmen have joined the complainant-GEU in the last week of August 2005. It was further averred that initially the workmen were owing allegiance to the BKS which had obtained the certificate of recognition and had also signed the settlement for wages and service conditions of the workmen. However, the workmen realized that the said BKS was not functioning in the interest of the workmen but in the interest of the employer, therefore, somewhere in 2002, except a handful of workmen all other workmen had resigned from the membership of the BKS and had joined the Bhartiya Kamgar Karmchari Mahasangh (for short hereinafter referred to as "BKKM") which had also filed an application for recognition which was pending at the relevant time when the said Complaint (ULP) No. 428 of 2005 came to be filed. It was further the case of the complainant-GEU that the workmen had resigned from the membership of the said BKMM and had joined the complainant GEU. It was the case of the complainant-GEU that on the workmen joining the complainant-GEU, the officials of the Respondent No. 1-Company started threatening them on account of which one executive committee member was suspended and an inquiry was also commenced against him. However, later on the said inquiry was not proceeded with and was closed. It was the case of the complainant-GEU that the workmen working in the diamond division are engaged in polishing diamonds and related activities. It was its case that the said company is functioning from SEEPZ and is enjoying several benefits and protection granted by the government in order to promote export from the country. It was further averred that on 30/08/2005 at the end of the working hours the Respondent No. 1-Company put up a notice stating that 450 workmen are transferred to Respondent No. 6-Inter Gold Diamonds Pvt. Ltd. at Kandivli. It was further mentioned in the matter that the workmen would continue to draw the same wages and there would be no break in service. It was further mentioned in the said notice that the Respondent No. 1-Company had discussion with the recognized union and their committee members and the memorandum of settlement in the notice of transfer was filed in the Industrial Court in Complaint (ULP) No. 317 of 2005. It was contended that the workmen were unaware about the provision of settlement dated 25/09/2002 between the Respondent No. 1 Company and the BKS. The said settlement dated 25/09/2002 was questioned on the ground that the clause for transfer is against the provisions of law as there is no provision in the Model Standing Orders for transfer. It was contended that even a recognized union cannot enter into any settlement which has clauses which are contrary to law. It was therefore averred that the transfer of the workmen to the new entity is in breach of the service conditions. The complainant-GEU had therefore on the said basis sought a declaration of unfair labour practice committed by Respondent No. 1 and consequential reliefs to direct the Respondent to quash and set aside the notices dated 30/08/2005 by which the workmen were transferred to Respondent No. 6.
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In the said Complaint (ULP) No. 428 of 2005, an application for interim relief was moved by the complainant-GEU. The interim relief sought by the complainant-GEU was rejected by the Industrial Court upon which the complainant-GEU had filed Writ Petition in this Court being Writ Petition (Lodging) No. 2296 of 2005. A learned Single Judge of this Court did not interfere with the order passed by the Industrial Court, however, a direction came to be issued to expedite the hearing of the said Complainant (ULP) No. 428 of 2005 and decide the same not later than four months of the said order. The said complaint was accordingly expedited.
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After the Writ Petition was disposed of, the Industrial Court took the said Complaint for adjudication. In support of its case, the complainant-GEU had examined three witnesses whereas the Respondent No. 1-Company had examined its Director Mr. Hitesh Mehta. Both the parties also relied upon documentary evidence. The BKS and the BKMM had also intervened in the said complaint and were joined as Respondent Nos. 7 and 8 but they had not adduced any evidence. The Industrial Court on the basis of the material on record...
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