JUDGMENT V.K. Barde, J.
1. The respondent in Complaint (U.L.P) No. 519 of 1994, which was filed by the original complainants-respondents Nos. 1 to 6 hereinbefore the Industrial Court, Thane, has filed the present writ Petition challenging the order passed by the learned Member, Industrial Court, Thane in the said complaint on October 24, 1996.
2. The present respondents Nos. 1 to 6 original complaints Nos. 1 to 6 (hereinafter referred to as "the complainants") filed a complaint alleging that the present petitioner-original respondent-company (hereinafter referred to as the "company") committed unfair labour practice under items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act").
3. The complainants contended that they and others were the employees of company. The present petitioner-company declared a Voluntary Retirement Scheme (hereinafter referred to as the "VRS") on June 30, 1992. Thereafter, there were talks between the company and Union of the employees with respect to the said VRS. The employees were not willing to accept the VRS. However, the management prevailed over the employees to accept the VRS. As an outcome of the talks between the management of company and the Union, the Vice President of the company, by his letter dated July 10, 1992 informed to the Union that there was no intention to continue the manufacturing operations at Thane Unit. It was, however, made clear that if at all the company decides to restart the manufacturing operations, all things being equal, the company will give preference to the person who had been in the employment of the company prior to their separations under the VRS. Then in continuation of this letter, the Vice President of the company addressed another letter on July 11, 1992 to the Union that there was apprehension in the minds of the employees that who did not accept the VRS on that occasion could be paid more and, therefore, it was assured that the company would not indulge in any such discrimination, whatever was being offered was the highest. According to the complainants, because of these assurances by the management of the company, most of the employees accepted the VRS.
4. However, as all the employees had not accepted the VRS, the company declared second Scheme of VRS on March 16, 1994 and under that Scheme additional benefit of lump sum payment of Rs. 90,000/- was offered to the employees. It is, therefore, the contention of the complainants that the company had entered into an agreement with the employees that no better benefits would be given to the employees who had accepted the first VRS and that the agreement was breached by the company by declaring the second VRS granting thereunder additional benefits to the employees accepting the second VRS. This, according to the complainants, amounted to unfair labour practices under items No. 5, 9 and 10 of Schedule 4 of the Act, and hence the complaint under Section 28 of the Act.
5. The company filed its Written Statement and contested the matter. The learned Member, Industrial Court, Thane, recorded evidence of both the sides and then came to the conclusion that the company had engaged itself in unfair labour practices as alleged by the complainants, and directed the present petitioner-company to desist from such unfair labour practices and also directed the company to pay the amount of Rs. 1,00,000/- and a reasonable interest thereon from August 1992 till the date of such payment to such of ex-employees who had accepted the first VRS as per notice dated June 30, 1992, The complainants had annexed a list of the employees who had accepted the VRS as declared on June 30, 1992 and those employees named in the list were held to be entitled for this additional monetary benefit.
6. The main contention of the company in this petition is that the complainants were not the employees of the company when they filed the complaint before the Industrial Court; they had already resigned from the job by accepting the first VRS; they, therefore, had no locus-standi to file the complaint; they cannot claim any of the benefits as given to the employees who were governed under the second VRS. The other leg of the contention of the company that the six complainants who had filed the complaint cannot represent the other employees who had accepted the VRS and who are not signatories to the complaint filed before the Industrial Court and, therefore, it was not correct on the part of the learned Member, Industrial Court, to grant benefit to all the employees who had accepted the VRS as per notice dated June 30, 1992.
7. In support of the contention that the complainants were not the employees of the company as on the date of the complaint, the learned Counsel for the petitioner-company has argued that the term employee used under the Act is defined in Section 3(5) of the Act and as per that definition, the definition under Section 2(s) of the Industrial Disputes Act, 1947 is to be taken into consideration. This definition under Section 2(s) of the Industrial Disputes Act clearly indicates that only the person who is actually in service is considered as the workman /employee. An exception is made only with regard to the workman who had been dismissed, discharged or retrenched and who raised a dispute in connection with or as a consequence of that dismissal, discharge or retrenchment. So a person who has resigned from the service is not governed by Section 2(s) of the Industrial Disputes Act. The employees who had accepted the VRS have, in fact and as per law, resigned from the service and therefore, according to the learned Counsel for the company, were not the employees as on the date of filing of the complaint in the present matter.
8. It is further contended by the learned Counsel for the company when the company had raised an issue that the complainants were not the employees of the company, the Industrial Court ought not to have proceeded further in the matter, and the complainants ought to have established their status as employees by bringing proper proceedings and on obtaining such decision in such proceedings, they could have filed complaint under Section 28 of the Act.
9. The learned Counsel for the complainants has argued that it may be that as on the date on which the complaint was filed, the complainants were not in actual employment of the company. However, according to him, the dispute related to an agreement which was arrived at between the parties whilst the complainants were in actual employment of the company. According to the learned Counsel for the complainants the nature of the agreement was such that the cause of action would definitely arise not when the complainants were in actual employment of the company but only after they had gone out of the service by accepting the VRS. The complainants, when they were in service, had no reasons to file any complaint on the basis of the agreement. The company declared second VRS, whereunder it gave additional benefits to those employees who were in employment after the first VRS and accepted the second VRS and that is how the cause of action arose for the complainants who had gone out of the service under the first VRS. In the circumstances, according to the learned Counsel for the complainants, the complainants must be considered as continued in service for the proper implementation of the agreement till the agreement was duly honoured by the company.
10. The learned Counsel for the complainants also argued that when the complaint in the present matter was filed, there was not the very recognized union which was representing the employees at the time of the first VRS. The employees, therefore, had no choice but to go before the Court to file the complaint. They had obtained proper authority from other employees who had accepted the first VRS and filed the same along with the complaint and, therefore, the six complainants were entitled to file the complaint in a representative capacity for all such similarly situated employees. The complaint, therefore, according to the learned Counsel for the complainants, is rightly filed by the six complainants for and on behalf of all the similarly situated employees before the Industrial Court.
11. In the light of these arguments, it is first to be ascertained as to whether the employees, who had accepted the first VRS as per notice dated June 30, 1992 could have filed complaint under Section 28 of the Act. The learned Counsel for the company has relied upon a judgment of the Apex Court in the case of Vivid Kamgar Sabha v. Kalyani, 2001 AIR SCW 170. In the said ruling, the Union of Workers of Canteen run by the respondents therein had filed a complaint under Section 28(1) of the Act alleging various unfair labour practices on the part of the respondent-company. The respondents therein took a stand that the employees, who were represented by the Union, were employees of the contractor and not of the respondent-company. The complaint in the said matter came to be dismissed by the Industrial Court and then the matter came up before the Hon'ble Supreme Court. The Apex Court has, in paragraph 5 of its judgment, observed as follows:
"The provisions of MRTU & PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the Company, then that dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate Forum that a complaint could be made under the provisions of MRTU & PULP Act."
12. Same view was taken by the Hon'ble Apex Court in the case of General Labour Union (Red Flag), Bombay v. Ahmedabad Mfq. & Calico Printing Co. Ltd. and Ors., 1995 SCC (L&S) 372. In both these cases before the Apex Court, the company had taken a stand that the employees were not in employment of the company but that of the contractors; that they were working through the contractor and, therefore, the employees were not in direct employment of the company. Because of this specific stand taken by the company, and on fact pf the said cases, the Apex Court has come to the conclusion that the employer had never accepted that the complainants in those cases were ever employees of the employer and so unless that relationship is established, a complaint under Section 28 of the Act is not maintainable. In the present case, however, it is not the contention of the petitioner-company that the complainants were employees of some contractor. It is an admitted fact that the complainants were in actual employment of the petitioner-company. So, the only question to be considered is whether after acceptance of the first VRS by the complainants in this matter, they could have filed a complaint under Section 28 of the Act.
13. The learned Counsel for the Petitioner, therefore, has relied upon two rulings of the Kerala High Court, the first is Everestee v. District Labour Officer 1999 II CLR 380. In the said matter, the employee had accepted the VRS, had received all the benefits but thereafter had raised a dispute that some of the employees who also had opted for VRS received more monetary benefits than those received by the employee-applicant. So, in the facts and circumstances of the said case, it was observed by the Kerala High Court that after accepting all the benefits under this VRS, the workman was not entitled to file proceedings by raising a dispute; he did not continue to enjoy status as workman so as to claim anything after his resignation.
14. The other case on which the learned Counsel for the Petitioner-company has relied upon is Purandaran v. Hindustan Lever Ltd, 2001 (II) CLR 170. There the workmen had contended that the company tempted them to adopt for VRS introduced by the company and thereafter they came to know that there was a change in the terms of VRS of the company and 15 per cent more benefits were being given to the workmen under the changed scheme. Therefore, the workmen therein had claimed that they also be given the same benefit. Here again the learned Single Judge of Kerala High Court held:
"The employee who adopted VRS was not entitled to claim status of workman for the purpose of Section 2(s) of the Industrial Act and, therefore, he was not entitled to file any claim."
15. No doubt, in the present matter also, it is the contention of the complainant that they were tempted to adopt VRS and, therefore, they accepted the VRS. However, later on some more benefits were given to those employees who continued in employment after 1992. Similarity between this case and the case before the Kerala High Court ends there only. Here, it is not the contention of the complainants that because of the temptation, they accepted the scheme but according to them, a specific assurance was given to them, first is that if the company were to restart its operations, then the employees who had accepted the VRS were to be first considered for the employment and second assurance was that no better monetary benefits would be given to those employees who did not accept the first VRS as declared on June 30, 1992. These two assurances spelt out in the two letters written by the Vice President of Company amounted to agreement because those letters were the outcome of the discussion with the union. So, here the complainants are pleading a specific agreement between the employer and the complainant and their contention is that, that agreement is breached by the company. So, the present case stands definitely on different footing than the matter which was before the Kerala High Court in Purandaran's case (supra). The reasoning, therefore, given in that case cannot be adopted or made applicable to the facts of the present case.
16. The learned Counsel for the complainant has relied upon the ruling of this Court in the case of ICI India Ltd. v. Presiding Officer and Ors., 1993 I CLR 753, and has particularly drawn my attention to the observations made by my brother Judge in the said ruling in paragraph 45 on page 772. My brother Judge (Justice Shri B,N. Krishna), after referring to the decision of the Apex Court in Workmen of Dimakuchi Tea Estate (Assam Chah Karmachari Sangh) v. Dimakuchi Tea Estate, 1958 I LLJ 500, and the judgment of Division Bench of our High Court in P. L. Mayckar v. Agichend Narayan, 57 BLR 1999, has in paragraph 45 of his judgment in ICI India Ltd. (supra) observed thus :
"An industrial dispute can legitimately arise even after the service of the workman has come to an end and the master servant relationship has ceased. Though both decisions were concerned with relief, to a dismissed workman, the principle can be extended to the case on hand also. For the purpose of pensionary rights, the pensioner or retiree would as much be as workman as other workman whose contracts of employment are still subsisting. I am unable to accept the contention of the learned Counsel for the petitioner that after retirement or demitting office the pensionary right of the retiree could be enforced only by resort to a civil suit and not by resort to the adjudicatory machinery available under the Act. (Industrial Disputes Act)."
17. Thus, merely by-reasons of the relationship of employer-employee has ceased to exist because of the resignation given by the employee, it cannot be said that the employer is absolved from liability arising out of an agreement which had taken place between the employer-employee when employee was in service and the employee had resigned relying on the agreement. It is one thing to say that the cause of action arose only when the employee was in service and the employee did not approach the Court at that time and it is another thing to say that cause of action arises only after the employee ceased from the employment. In the later case, an employee has a further right to move the Industrial Court for unfair labour practices on account of breach of the terms of the agreement.
18. If the company had taken the stand that the complainants in the present case were never their employees and were the employees of somebody else, then as laid down by the Apex Court in the above ruling, it would have been necessary for the complainants to first establish their status as employees by filing proper proceedings and on succeeding in establishing their status as employees, they could have filed the complaint, However, as pointed out above, it is not disputed that the complainants were in the employment of the company till they accepted the VRS under notice dated June 30, 1992.
19. The VRS was accepted under particular circumstances. The company first declared VRS, then there were talks between the representatives of the Union of the employees and the management of the company. The Vice President of the Company thereafter referring to talks, sent the letters of July 10, 1992 and July 11, 1992, gave specific assurances to the employees who were to accept the first VRS, that they would be considered for re-employment in case the company decides to restart its manufacturing operations and another that no better benefits would be given to the employees who did not accept the first VRS. The employees thus were convinced and made to believe that whatever was being offered under the first VRS was the highest benefit that could be obtained from the company as stated in the letter of July 11, 1992. Therefore, on all these assurances the employees including the complainants accepted the VRS. The employees had no reason to file any dispute against the company with respect to the first assurance that the employees who would accept the VRS would be considered first in case the company decided to restart its manufacturing operations because the company had decided to close down the manufacturing operations and as a result thereof, the VRS was proposed. With respect to the second assurance in the letter dated July 11, 1992, till the second VRS was not declared by the petitioner-company, the employees, who accepted the first VRS, had no reason to file any dispute and it is only when the second VRS was declared proposing additional benefits of Rs. 90,000/- per employee who continued in employment after the first VRS, the cause of action arose in favour of the complainants who filed the complaint and those employees who accepted the first VRS to claim similar benefits because by the grant of additional benefit of Rs. 90,000/- under the second VRS, a discrimination was created between the two similarly situated employees. By reason of this additional monetary benefit under the second VRS, there was a breach of the agreement with the employees who accepted first VRS to the effect that no better benefits would be given to those employees who did not accept the first VRS.
20. It is thus very clear that the discrimination was practiced by the company between the employees who had accepted the first VRS and those who had not accepted the first VRS though both of them were similarly situated which amounted to unfair labour practice under Item 5 or Schedule 4 of the Act. This happened because the company committed breach of the agreement with the first set of employees who had gone out of service under first VRS that no higher benefits would be given to the employees who did not accept the first VRS and continued in service thereafter. By declaring higher benefit under the second VRS, the committee committed breach of the terms of the agreement with the first set of employees and that amount to unfair labour practices under Item 9 of Schedule 4 of the Act. .
21. It was incumbent on the part of the petitioner-company not to declare any higher benefit to those who had not accepted the first VRS, but having declared such additional monetary benefit under the second VRS, the same ought to have been extended and made applicable to the first set of employees who accepted the first VRS. When the company had declared under clause 3 of second VRS that a sum of Rs. 90,000/- will be paid to each of the employees over and above the other benefits which were being given as per the first VRS, the employees who had accepted the first VRS became entitled and eligible to receive the said additional benefit of Rs. 90,000/- per employee.
22. If the argument of the learned Counsel for the company is accepted then it will amount to say that the company may entered into a particular agreement with specific assurance so as to make the employees accept the VRS and once they accept the VRS and have gone out of service thereunder, the company may fall back on their assurance and give better monetary benefits to those who had not accepted the first VRS and continued in employment just to see that those employees also leave service of the company. A right to the first set of employees who accepted the first VRS to claim additional benefit of Rs. 90,000/- per individual as granted under the second VRS accrued to them by reason of they being in service before acceptance of the first VRS. They were, therefore, entitled to enforce that right even after the acceptance of the first VRS because the cause of action arose to them only when they were discriminated for the additional monetary benefit under the second VRS. If such a right is not recognized then grave injustice would be caused to the employees who accept the first VRS on certain assurances by the management of the company which assurances are not observed while declaring the second VRS. Not only that, non recognition of such right would set an example that the employer may give any assurances to the employees and make them believe those assurances and further to accept the VRS and afterward commit breach of those assurances while promulgating second VRS without any fear of consequences of the breach.
23. In view of the aforesaid discussion, the technical interpretation of Section 2(s) of the Industrial Disputes Act cannot come to the rescue of the company so long as the agreement is in force and the company is bound to abide by that agreement and the employees are entitled to receive all the benefits under the agreement. It is worth noting here that the agreement did not come to an end on accepting the VRS, On the contrary, the agreement came into force by accepting VRS proposed thereunder, as by accepting the VRS the employees complied with their part of obligation under the agreement and it was then the responsibility of the company abide by its obligation under the agreement that no better monetary benefits would be given to those employees who continued in service after the first VRS. However, the company did not discharge its obligation under the agreement as it granted under the second VRS additional Rs. 90,000/- per employee which amounted to committing breach of the agreement. The complainants had, therefore, every right to file complaint under Section 28 of the Act. The complainants, therefore, must be considered as employees of the petitioner-company on the date on which the complaint was filed to enforce their right under the agreement which had accrued to them by reason of the agreement which was entered into when they were in employment.
24. Once it is held that the complainants could file a complaint under Section 28 of the Act, they will have to be treated as employees for the purpose of enforcement of their right flowing in their favour from the said agreement between them and the company. If that be so, then there is no substance in other contention of the learned counsel for the company that the relief claimed in the complaint should be restricted only for the complainants who actually signed the complaint. It is worth noting that the agreement was not only with six employees who filed the complaint for enforcement of their right and entitlement under the agreement but it was with all the employees who were in service before June 1992. The agreement was for the benefit of all the employees who had accepted the first VRS. So, all those employees who accepted the first VRS, must be considered to be employees and entitled to receive the benefits that may be given to the complainants by the decision of the learned Member, Industrial Court in the, complaint filed by the complainant.
25. It is not that all the 300 and more employees who had accepted the first VRS must join to the complaint as complainant. The complaint can be filed by any one of the employees who are aggrieved because of the acts of the company and the benefit of the judgment would accrue to those employees also with respect to whom the unfair labour practice has been practiced by the company.
26. The Court declares that the employer has committed the particular unfair labour practice and further directs the employer to desist from such unfair labour practice. So, when such a direction is given, the employer has to implement the same not only with respect to the employee who has actually filed the complaint but with respect to all those employees who have suffered because of such unfair labour practice. If the employer docs not act so with respect to such other employees, then he would be committing breach of order of the Court. So, even one employee can file complaint under Section 28 of the Act for unfair labour practice alleged under Item 9 of Schedule IV of the Act for the benefit of all other employees.
27. I, therefore, do not find any substance in the contention of the learned Counsel for the company that six complainants cannot represent all the employees and that those employees who were not complainants in the complaint before the Industrial Court are not entitled to the benefit of the order passed by the said court, for the simple reason that the interest is common for all of them as the agreement is not only with the complainants to the exclusion of other employees.
28. In the circumstances, I am of the opinion that having regard to the facts of this particular case, the company has failed to make out a case for setting aside the order passed by the learned Member, Industrial Court. Writ Petition is, therefore, liable to be dismissed and rule will have to be discharged. There is, however, one modification required in the impugned order passed by the learned Member, Industrial Court, with regard to factual error with regard to the quantum of amount to be granted to the employees-acceptors of the first VRS and rate of interest thereon.
29. In the concluding paragraph, that is, paragraph No. 25 of the impugned Order, the learned Member, Industrial Court, has observed that all the concerned employees are eligible for ex-gratia payment of Rs. 90,000/- per employee as the company has paid to 179 employees who have opted for second VRS of 1994. However, while passing the final order, the learned Member, Industrial Court has stated that the complaint is allowed in toto and reliefs prayed for in the complaint are granted. Prayer Clause (b) in the complaint before the learned Member, Industrial Court, relief sought is that the respondents (petitioner herein) be directed to pay a sum of Rs. 1,00,000/- with reasonable interest thereon from August 1992 till the date of such payment, to such of their ex-employees who resigned under their Voluntary Retirement Scheme as per their Notice dated June 30, 1992.
30. However, if one reads term No. 3 of the second VRS, that is, 1994 VRS/ Memorandum of Understanding (Exhibit B, page 22 of the compilation), a lump sum amount of Rs. 90,000/- is payable to every employee by April 15, 1994. Therefore, to bring the employees-acceptors of the first VRS at par with those employees-acceptors of second VRS, only Rs. 90,000/- per employee can be granted to the employees-acceptors of the first VRS, and not Rs. 1,00,000/- as claimed in prayer Clause (b) of the complaint and as directed by the learned Member, Industrial Court in his final order.
31. As far as interest part is concerned, the learned Member, Industrial Court has, though in the operative part of his final order stated that the complaint is allowed in terms of prayer clause of the complaint in toto under which interest is claimed at a reasonable rate, neither clarified as to at what rate interest should be awarded on the amount payable to each of the similarly situated employees, nor has he in the reasoning part of his judgment observed that the employees are entitled to interest on the amount of Rs. 90,000/- at a particular rate and from a particular date. Having regard to the fact that the learned Member, Industrial Court has granted relief as per the prayer (b) of the complaint. I would modify the order of the learned Member, Industrial Court only to the extent of quantum of amount as stated in preceding paragraph and interest payable thereon. In the facts and circumstances of this particular case, I feel it appropriate to grant interest on the said amount of Rs. 90,000/- at the rate of 6 per cent per annum from April 15, 1994 till the date of the payment. The company is, therefore, directed to pay to each of the employees and the complainants who had accepted the first VRS declared by notice dated June 30, 1992, a sum of Rs. 90,000/-together with interest thereon at the rate of 6 per cent per annum from April 15, 1994 till payment.
32. Save and except the aforesaid modification, the impugned order passed by the learned Member, Industrial Court, Thane, dated October 24, 1996 does not require any interference. Writ Petition, therefore, stands dismissed. Rule discharged. Concerned Personal Secretary to issue authenticated copy to the parties. Parties and all concerned to act on it.
Learned Counsel for the Petitioners requests that the order be stayed for a period of four weeks. Learned Counsel for respondents opposes the request. Considering the circumstances, the order is stayed for a period of four weeks. The bank guarantee to continue and if it expires, the petitioners to renew the same.