sg wp3080-05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3080 OF 2005
Su-Raj Diamonds (I) And its Associates
And/Or Contracts Staff Association ....Petitioner
vs.
1. M/s. Winsome Diamonds and Jewellery Ltd.
Formerly known as
Su-Raj Diamonds and Jewellery Ltd.
And prior to that it was known as
M/s. Su-Raj Diamonds (I) Ltd.
2. The Chairman,
M/s. Winsome Diamonds and Jewellery Ltd.
Formerly known as
Su-Raj Diamonds and Jewellery Ltd.
And prior to that it was known as
M/s. Su-Raj Diamonds (I) Ltd.
3. Shri G.D. Tadvalkar,
Member, Industrial Court, Mumbai
....Respondents
....
Mr. Joy Deb Saha, President of Petitioner Union-in-person, for the
Petitioner.
Mr. T.R. Yadav, for the Respondents.
....
CORAM : S.C. GUPTE, J.
RESERVED ON : APRIL 5, 2016
PRONOUNCED ON : OCTOBER 1, 2016
JUDGMENT :
. This writ petition, filed under Article 226 of the Constitution of India, challenges an order passed by the Industrial Court, Mumbai on a complaint of unfair labour practice. By the page 1 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 impugned order, the Industrial Court dismissed the complaint of the workmen, whom the Petitioner represents in the present writ petition.
2. The complainant workmen's case is that they were employed with the first Respondent in various capacities on a monthly salary ranging between Rs.2,500/- to Rs.6,000/- per month. The first Respondent had two units - one at Seepz, employing about 2,000 employees and, the other at Goregaon, employing about 200 employees. The first Respondent was engaged in importing rough diamonds, polishing them at these units and thereafter exporting the polished diamonds. It is the complainants' grievance that the work, for which they were engaged, was purely clerical/technical in nature. It is the complainants' grievance that some of the workmen of the first Respondent went on strike in or about 1997/1998. The complainants, however, did not join the strike and continued to work with the first Respondent. By a settlement dated 25 February 1998, signed between the Union and the first Respondent, inter alia, providing for transfer/employment of various groups of workmen, the workmen were grouped in four categories under Annexures 'A', 'B', 'C' and 'D'. The workmen listed in Annexure 'D', which included the complainants, were to be transferred to Surat. It is, however, their case that their transfer to Surat was temporary and made with an assurance that they would be soon brought back to Mumbai; that notwithstanding their transfer they continued to be controlled from Mumbai with their wages also being paid at Mumbai. The settlement provided that, in the meantime, so long as the workmen worked at Surat, they would be provided a proper accommodation at Surat. It is the case of the page 2 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 complainants that believing the representations made by the first Respondent, the complainants went to Surat and worked there from 1 March 1998 till 7 August 1998. The complainants' grievance is that they were not paid salary from June 1998, though they continued to work at Surat. It is also their grievance that though they were assured of an accommodation at Surat, no proper accommodation was provided to them at Surat. It is also their complaint that their service conditions were also breached inasmuch as by a purported agreement of 9 June 1998, the first Respondent claimed to have changed their status as monthly wage earners to daily piece rate workers. The complainants submit that as they were not receiving salary at Surat and had no source of accommodation at Surat and they were based in Mumbai, it was not possible for them to continue to report at Surat and, accordingly, they returned back to Mumbai and reported for work at the Seepz unit from time to time. It is their grievance that though the first Respondent promised to assign them work at the Seepz unit, no work was actually assigned to them. It is also the complainants' grievance that there was favouritism between the employees of the first Respondent; that whilst some employees were assigned work at the Seepz unit in Mumbai, the complainants herein were not. The complainants, in the premises, filed the subject complaint, being Complaint (ULP) No.324 of 1999, before the Industrial Court at Mumbai. The complaint alleged unfair labour practice on the part of the first Respondent within the meaning of items 5 and 9 of Schedule IV of MRTU and PULP Act, 1971 ("the Act").
3. Based on the pleadings of the parties, the Industrial page 3 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 Court, inter alia, framed issues of jurisdiction, limitation and merits of the complaint. In so far as jurisdiction is concerned, the Industrial Court came to the conclusion that the employees were transferred to Surat and, accordingly, reported and worked at Surat.
They received their wages at Surat and finally abandoned the work at Surat; and that, in the premises, it is the Court at Surat, which alone has jurisdiction to entertain the complaint. On the bar of limitation, the Industrial Court came to the conclusion that the complaint being related to non-payment of wages for the months of June and July 1998, filing of the complaint on 11 March 1998, i.e. more than 90 days after the accrual of cause of action, was beyond time. On merits of the complaint, the Industrial Court held that it was the workmen, who failed to report for work; that there was no change of service conditions; and that there was no breach of settlement or award and no discrimination amongst workmen. The Industrial Court, in the premises, dismissed the complaint.
4. In so far as the issue of jurisdiction is concerned, it is pertinent to note that the complaint related both to non-payment of wages as well as non-assignment of work. It was the Petitioner's case that their wages were payable at Mumbai and even assignment of work had to be done in Mumbai and that, in the premises, the complaint of non-payment of wages and non assignment of work lied before the Industrial Court at Mumbai under items 5 and 9 of Schedule IV of the Act. The complaint is on the footing that the complainants' transfer to Surat was merely temporary and for a short period on a specific assurance that the workmen would be called back shortly to Mumbai. It is the specific case of the complainant workmen that even after they had been so transferred, page 4 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 they continued to be controlled from Mumbai and their wages were also paid at Mumbai. The complainants' grievance is that since, contrary to the settlement, the complainants were not provided proper accommodation at Surat and since their service conditions were changed with effect from June 1998, inasmuch as their monthly wages were converted to piece rate and daily wages, they refused to report at Surat and returned to Mumbai to their original work place. Their grievance is that, despite reporting for duty at Seepz in Mumbai, no work was assigned to them. On these facts, the complaint clearly lies before the Industrial Court at Mumbai.
The workmen have led cogent evidence on these issues, much of which was not seriously controverted by the first Respondent. Even the order of the Industrial Court clearly proceeds on the footing that the workmen actually stopped reporting for duty at Surat and demanded work at Mumbai. (This without considering the workmen's case of temporary nature of their transfer as also the reasons for their refusal to report at Surat.) The impugned order also specifically accepts the complainants' case that the complainants continued to be controlled from Mumbai and even their wages were paid from Mumbai; the pay slips of the workmen were made in Mumbai and the entire correspondence was addressed to the workmen from Mumbai. In the face of the evidence and the observations in the order referred to above, the Industrial Court's conclusion of lack of jurisdiction to any Court in Mumbai, is clearly untenable. It can certainly be termed as something no reasonable person duly instructed in law could have reasonably arrived at.
5. As for the Industrial Court's conclusion on limitation, the same is simply based on the fact that the complaint alleges non-
page 5 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 payment of wages for the months of June and July 1998 and is filed more than 90 days after the due dates of payment. The Industrial Court has failed to consider that apart from the question of non- payment of wages for two months, the main thrust of the complaint was on non-assignment of work at Mumbai, which was in the nature of a continuous cause of action. Apart from this, the Industrial Court also failed to consider that, by an earlier order dated 14 June 2002, on an application of the complainants (Exhibit U-17), the delay in filing of this complaint in so far as the claim of non- payment of wages from June 1991 onwards was concerned, was condoned. Despite this, the Industrial Court has in the impugned order strangely recorded that there was no application to condone the delay. In the face of these facts and particularly, an express condonation of delay by an order of the Court, the Industrial Court could not have rejected the complaint on the ground of bar of limitation.
6. In so far as the merits of the complaint are concerned, the conclusion of the Industrial Court is based primarily on the following aspects :
(i) The complainants' case was that some of the employees were transferred to Surat and on their return to Mumbai were employed at Seepz in Mumbai, whereas the complainants were not so employed. The Industrial Court termed this case as ipse dixit and on that footing did not consider the same;
(ii) Secondly, the order proceeds on footing that the complainants abandoned their services at Surat and that this page 6 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 abandonment was a voluntary act on their part, since admittedly they returned to Mumbai and, thereafter, proceeded on strike and joined hands with the other employees of the first Respondent, who were already on strike and, in the premises, there was no unfair labour practice qua the complainants;
(iii) Thirdly, the Industrial Court came to the conclusion that the settlement dated 9 June 1998 entered into between Bharatiya Kamgar Karmachari Mahasangh and the first Respondent inter alia provided for new production norms and payment of piece rate daily wages and that accordingly there was no illegal change in the service conditions of the complainant workmen.
7. The complainants had, apart from oral evidence of the workmen, who deposed before the Court, led voluminous documentary evidence on unequal treatment given to two sets of workmen, including documents from the Office of the Provident Commissioner, Kandivali, Mumbai produced in pursuance of a summons. The Industrial Court was expected to examine this evidence and enter a finding on whether or not there was discriminatory and unequal treatment to different sets of workmen. It could not have simply brushed aside the complainants' case on the ground that it was ipse dixit. Even as regards the purported voluntary act of abandonment of services at Surat and return to Mumbai, the discussion in the impugned order is wholly unsatisfactory. The order, as I have noted above, does not in terms consider, in the first place, the complainants' case that their transfer to Surat was merely temporary with an express assurance to shortly call them back to Mumbai. The Industrial Court also does not page 7 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 consider satisfactorily the issue concerning the circumstances, which the complainants claim to have led them to stop reporting at Surat and return to Mumbai. The conclusion of the Industrial Court that the complainants after their return to Mumbai proceeded on strike and joined hands with the other employees of the first Respondent, also hangs in the air without any discussion concerning evidence on the issue. As for the purported settlement dated 9 June 1998, it was an express case of the complainants that they had resigned from Bharatiya Kamgar Karmachari Mahasangh and were not party to the settlement and did not consent to the settlement. This case has also not been considered by the Industrial Court. The Industrial Court simply appears to have proceeded on the footing that there was a settlement between Bharatiya Kamgar Karmachari Mahasangh and the first Respondent and that this settlement was decisive and held the field, without discussing whether the complainants were bound by the particular settlement. In the premises, what broadly emerges from a reading of the impugned order is that the major contentions of the complainants, on which there was evidence before the Court, went unexamined. This state of affairs clearly warrants an order of remand, requiring the Industrial Court to consider the issue of unfair labour practice afresh in accordance with law and in the light of the discussion above.
8. In the premises, Rule is made absolute and the writ petition is disposed of in terms of the following order :-
(I) The impugned order of the Industrial Court dated 25 August 2005 is quashed and set aside and Complaint (ULP) No.324 of 1999 is remanded to the Industrial Court for a fresh consideration page 8 of 9 ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:37:52 ::: sg wp3080-05 in accordance with law. Since the Court has to merely proceed to consider the merits of the case of unfair labour practices alleged by the complainants in the light of the evidence already on record, the Industrial Court is directed to dispose of the complaint expeditiously and in any event, within a period of three months from today;
(II) The Industrial Court shall proceed on the footing that it has jurisdiction to entertain the complaint and also that the complaint is within limitation;
(III) The Industrial Court shall consider all aspects on merits of the complaint of unfair labour practice and appropriate relief to be granted to such of the complainant workmen as are entitled to;
and
(IV) No order as to costs.
(S.C. GUPTE, J.)
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