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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.271 OF 2005
IN
WRIT PETITION NO.2506 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Prakash T. Kadam
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.272 OF 2005
IN
WRIT PETITION NO.2503 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Vishnu R. Ajgekar
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079.
....Respondent
Nesarikar
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WITH
APPEAL NO.273 OF 2005
IN
WRIT PETITION NO.2504 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Suhas C. Wakchaure
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.274 OF 2005
IN
WRIT PETITION NO.2505 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Gauri Shankar Tiwari
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
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WITH
APPEAL NO.280 OF 2005
IN
WRIT PETITION NO.2507 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Shreeprasad K. Rimal
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.281 OF 2005
IN
WRIT PETITION NO.2508 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Shri Shyam Singh B. Saun
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
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WITH
APPEAL NO.283 OF 2005
IN
WRIT PETITION NO.2510 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Pradeep P. Ambekar
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.284 OF 2005
IN
WRIT PETITION NO.2511 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
K. A. Ramakrishnan
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
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WITH
APPEAL NO.295 OF 2005
IN
WRIT PETITION NO.2512 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Radheshyam D. Singh
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.296 OF 2005
IN
WRIT PETITION NO.2513 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Agam Prasad Paudiyal
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
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WITH
APPEAL NO.297 OF 2005
IN
WRIT PETITION NO.2514 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Krishna Bahadur K. Gurang
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.298 OF 2005
IN
WRIT PETITION NO.2515 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Bijayprakash D. Rai
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
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WITH
APPEAL NO.299 OF 2005
IN
WRIT PETITION NO.2516 OF 2004
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Rajaram R. Sah
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
WITH
APPEAL NO.1064 OF 2005
IN
WRIT PETITION NO.1920 OF 2005
Godrej Industries Ltd.
(Formerly known as Godrej Soaps Ltd.)
Eastern Express Highway
Vikhroli (E),
Mumbai - 400 078. ....Appellant
V/S
Vijay D. Shah
C/o. Godrej Soaps Limited,
Piroj Shah Nagar,
Eastern Express Highway,
Mumbai - 400 079. ....Respondent
.......
• Mr.Rajesh Gehani, Advocate for the Appellant.
• Mr.Kiran Bapat i/b. Mr.A.S Patil, Advocate for the
Respondents.
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8 / 37 APP-271-05.odt
CORAM : R. M. SAVANT &
SARANG V. KOTWAL, JJ.
RESERVED ON : 13th NOVEMBER, 2017
PRONOUNCED ON : 23rd NOVEMBER, 2017
JUDGMENT (PER : SARANG V. KOTWAL, J.) :
1. This is a group of Appeals filed by the Appellant challenging the order dated 29/09/2004 passed by a learned Single Judge of this Court in a group of Writ Petitions, whereby all these Petitions filed by the Appellant herein, were dismissed. Since the facts and issues involved in all these Appeals are identical, except for the date of joining of the Respondents herein as also the oral evidence, all these Appeals are disposed of by this common judgment.
2. The group of Petitions was decided by the learned Single Judge by a reasoned order dated 29/09/2004 passed in Writ Petition No.2503/04, which was treated as the lead matter. The other Petitions were dismissed by adopting the said order. The learned counsel for the parties therefore request that the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 9 / 37 APP-271-05.odt above Appeal being No.272/05 arising out of the order passed in Writ Petition No.2503/04 be treated as the lead matter.
3. The Respondents in all these Appeals were the workmen employed by the Appellant. All of them had individually filed complaints against the present Appellant in the Industrial Court at Mumbai u/s 28 and 29 r/w Item Nos.5 and 9 of schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU and PULP Act). The Industrial Court had allowed all these complaints filed by the individual Respondents herein. The said orders were challenged by the Appellant herein by way of the aforementioned group of Writ Petitions before the learned Single Judge of this Court, who had dismissed those Writ Petitions as mentioned earlier.
4. The facts necessary to be cited for adjudication of these Appeals can in brief be stated thus.
5. It is the case of Respondents that they were employed by the Appellant and they were allotted work of Security ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 10 / 37 APP-271-05.odt Guards/Watchmen. All these Respondents were employed on various dates ranging from the year 1983 to 1991. The Appellant is a Limited Company. Initially the complaints were filed against the Vice President of the company and Bharatiya Kamgar Sena (BKS). However, in the Writ Petition the Appellant did not make the BKS as party Respondent and the Writ Petitions proceeded between the Appellant herein and the Respondents.
6. It is the case of the Respondents that, the Appellant was exploiting the Respondents from the time they were employed and they were not being paid wages and were not extended other service conditions and facilities such as Leave Travel Allowance, Bonus, Uniforms, Leave Facilities etc., which were extended to the other Security Guards performing the same nature of duties. The Respondents therefore claimed parity with the other Security Guards. It is the case of the Respondents that, prior to 1984 there were about 14 Security Guards/ Watchmen doing the same work as that of Respondents at the company's guest house and residential premises. Since the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 11 / 37 APP-271-05.odt service of these 14 Security Guards/Watchmen were terminated by the Appellant, they raised the demand of reinstatement with continuity of services and full back wages and also demanded equal remuneration and other service facilities, which were extended to the other Security Guards/Watchmen of the company. The said dispute was referred for adjudication and was numbered as Reference (IT) No.13/84. The Industrial Tribunal at Mumbai, passed an Award in the said Reference (IT) No.13/1984 by answering the Reference in favour of the workmen. The Appellant thereafter challenged the said Award by way of filing Writ Petition No.1006/95. Consent Terms were filed in the said Writ Petition and the workers involved in the said Reference (IT) No.13/84 were treated on par with the watchmen employed at the factory. It is the case of Respondents that they were also doing the same work and therefore they were entitled to the same benefits. However, the Appellant refused to accede to their demands and thus according to the Respondents, the Appellant had committed unfair labour practice covered under Item No.5 of schedule IV of the MRTU/ ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 12 / 37 APP-271-05.odt PULP Act and since it also amounted to failure to implement the agreement, attracted item No.9 of schedule IV of the said Act. With these contentions the Respondents filed their complaints with the prayers for the declaration that the Appellant herein had indulged in unfair labour practice and that it should be permanently restrained from indulging in any such unfair labour practice. The Respondents also prayed for a declaration that they were entitled to the same wages and other service benefits at par with the permanent watchmen employed by the Appellant. The complaints also made reference to the Settlement and MOU entered into between the Bharatiya Kamgar Sena and the management of the Appellant on 24/07/1995, which according to the Respondents was heavily biased in favour of the Appellant and in any case was not binding on the Respondents. By another prayer the Respondents sought declaration that the Memorandum of Understanding dated 24/07/1995 be declared as not binding on them.
7. On behalf of the Appellant, an affidavit was filed by the then Deputy General Manager (Personnel) of the Appellant ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 13 / 37 APP-271-05.odt Mr.Prabhakar J. Nandalike. The stand taken in the said affidavit apart from denying the allegations of unfair labour practice, was that, the Respondents herein were never assigned the job as watchmen at the factory premises, but they were employed at the residential quarters, company's guest house and Director's residence. It was also denied that the Respondents were performing the same nature of duties as that of the other employees in the factory. It was further averred that the Memorandum of Understanding which was part of the settlement dated 24/07/1995 was binding on the Respondents. It was contended in the said affidavit that by applying principles of intelligible differentia and after reasonable classification, the case of the other watchmen employed at the factory was distinguishable from that of the present Respondents.
8. On the basis of the pleadings of the parties issues were framed by the Industrial Court, which were as under -:
ISSUES
1. Whether the complainant proves that the respondents have committed an unfair labour ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 14 / 37 APP-271-05.odt practices under item 5 and 9 of Schedule IV of MRTU and PULP Act?
2. Whether the complainant is eligible and entitled to the reliefs prayed for?
3. What order?
9. During the proceedings before Industrial Court, on behalf of the Respondents, the Respondents themselves filed their individual affidavits in lieu of examination-in-chief in their individual complaints. They were cross examined on behalf of the Appellant herein and cross examination proceeded on the same lines for all the Respondents.
10. On behalf of the Appellant, the affidavits in lieu of the examination-in-chief were tendered by (i) Mr. Kalkobad F. Daruwala, who was the Senior Security Officer and (ii) Mr. Prabhakar J. Nandlike, who was working as Deputy General Manager (Personnel) at the relevant time. Both of them were cross examined on behalf of the Respondents and the cross examination proceeded on the same lines for all the Respondents. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 :::
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11. During the recording of the evidence of both the sides, the stand taken in the pleadings was reiterated, albeit with little more details. Various documents, notably the Award passed in Reference (IT) No.13/84, the settlement deed and MOU dated 24/07/1995 were produced on record. While the cross examination of the Respondents attempted to show that there was vast difference in the duties performed by the Respondents and the watchmen employed at the factory premises, the cross examination of the Appellant's witnesses proceeded to show that there was no difference between the nature of duties performed by the watchmen at the factory and at the premises like guest house and Director's house. The cross examination of Mr.Daruwala showed that hardly 24 hours of training was imparted to the watchmen employed at the factory premises. Mr.Daruwala in the cross examination also admitted that there was no difference in the attendance cards issued to the present Respondents and to other Security Guards. It was also admitted by him that the same uniforms were given to the Security Guards working at the factory and to the present Respondents. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 :::
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12. The examination-in-chief of Mr.Nandlike was mainly towards emphasizing the settlement dated 24/07/1995 accompanied by the MOU, as regards the niceties of the Award passed under Reference (IT) No.13/84. He was cross examined on behalf of the Respondents to show that the statutory requirements in respect of the settlement and the MOU dated 24/07/1995 were not complied with and hence settlement and the MOU were not binding on the present Respondents.
13. After considering the evidence and rival contentions, the Industrial Court vide judgment and order dated 06/05/2004 was pleased to allow the complaints of the Respondents. The present Appellant were directed to pay all the monetary and consequential benefits to the Respondents by treating them at par with the permanent factory security guards with immediate effect and the differences between the said monetary and consequential benefits arising out of the same, were directed to be paid from the date of filing of the complaints. The main ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 17 / 37 APP-271-05.odt thrust of the reasoning of the Industrial Court was that there was no difference between the duties of the security guards covered under the award passed in Reference (IT) No.13/84 and those of the present Respondents. It was also held that the settlement between the Appellant and the Bharatiya Kamgar Sena did not affect the present Respondents. The Industrial Court considered the fact that Bharatiya Kamgar Sena had not come forward in the proceedings arising out of these complaints.
14. As mentioned earlier, the orders passed by the Industrial Court in the individual complaints were challenged by the present Appellant in a group of Writ Petitions. The said Writ Petitions were decided by a Single Judge of this Court by the impugned order dated 29/09/2004 . After taking into account the entire record of the proceedings, arising out of the complaints, the learned Single Judge confirmed the orders passed by the Industrial Court and dismissed all these Petitions as mentioned earlier. The learned Single Judge has held that the settlement dated 24/07/1995 did not cover the present Respondents. It was also held by him that the MOU entered into ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 18 / 37 APP-271-05.odt on 24/07/1995 could not be said to be a part of the settlement entered into on the same day i.e. 24/07/1995. The learned Single Judge has also held that the Appellant did not comply with the requirements of formal settlement and that there was no positive evidence to show that the said MOU was signed between the Appellant and the Union by a duly authorized office bearer. The learned Single Judge further held that it was not established that the MOU was forwarded to the concerned officer in the manner required. The learned Single Judge emphasized that the Industrial Court had recorded the finding that it was a collusive settlement between the Appellant on the one hand and Bharatiya Kamgar Sena on the other. The Appellant herein having not chosen to implead Bharatiya Kamgar Sena as a Respondent in the Petitions and in these circumstances it was held by the learned Single Judge that the settlement was collusive and was not fair and was against the interest of the persons for whom it was meant. Thus, it was not a valid settlement. The learned Single Judge observed that the award Reference (IT) No.13/84 and the subsequent Consent ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 19 / 37 APP-271-05.odt Terms entered into in the Writ Petition challenging the said award, mentioned that the watchmen employed at the Directors house and guest house, were to be treated at par with the factory workers and therefore there was no justification for treating the present Respondents otherwise than on par with the Security Guards employed at the factory premises and thus item No.5 of Schedule IV of MRTU/PULP Act was clearly attracted. It was also observed that treating the workers differently because of their posting would be unreasonable and on this reasoning, the learned Single Judge of this Court dismissed the Petitions filed by the Appellant herein. As mentioned hereinabove, the said order dated 29/09/2004 is the subject matter of the challenge in the above Appeals.
15. Heard the learned counsel for the parties.
16. Mr.Gehani, learned counsel appearing for the Appellant submitted that the Industrial Court as well as the learned Single Judge of this Court erred in holding that the Respondents herein had proved their case of unfair labour ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 20 / 37 APP-271-05.odt practice under item No.5 of the Schedule IV of MRTU and PULP Act. Mr.Gehani submitted that there was nothing on record to show that the present Respondents performed the duties which were of the same nature as those performed by the other Security Guards/Watchmen employed at the factory of the Appellant. He submitted that the nature of the duties and responsibilities performed by the present respondents vastly varied from those of the Security Guards employed at the factory. He submitted that the Security Guards employed at the factory premises were required to be imparted special training, which was not imparted to the present Respondents.
17. He further submitted that the Reference (IT) No.13/84 nowhere suggests that the Security Guards therein were performing duties exclusively at the Bungalows, residential houses and guest houses of the Appellant. Therefore it was an error to treat the present Respondents on par with the beneficiaries under the said Award. Mr.Gehani further submitted that the learned Single Judge as well as the Industrial Court did ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:58 ::: 21 / 37 APP-271-05.odt not consider the settlement and the MOU dated 24/07/1995 entered into between the Appellant and the Bharatiya Kamgar Sena, which was the recognized Union; in proper perspective. According to Mr.Gehani such settlement was binding on the present Respondents. He lastly submitted that the grievances raised by the Respondents herein could not be the subject matter of the proceedings before the Industrial Court under the MRTU and PULP Act. In support of his submissions Mr.Gehani relied on various judgments. He drew our attention to the ratio laid down in the Judgment of Honourable Supreme Court in the case of State of Punjab and Ors. Vs. Jagjit Singh and Ors., as reported in AIR 2016 SUPREME COURT CASES 5176, wherein the Honourable Supreme Court has held that;
"The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work,' lies on the person who claims it."
The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 22 / 37 APP-271-05.odt any bearing on the determination of a claim, under the principle of 'equal pay for equal work.' The persons holding the same rank/designation, but having dissimilar powers and duties can be placed in different scales of pay and cannot claim the benefit of the principle 'equal pay for equal work'.
18. Mr.Gehani then relied on a judgment in the case of Hukum Chand Gupta Vs. Director General, ICAR & Ors., decided by the Honourable Supreme Court in Civil Appeal No.3580/09. In the said judgment it was held that;
"It was for the employer to categorize the posts and to prescribe the duties of each post. There cannot be any straitjacket formula for holding that two posts having same nomenclature would have to be given the same pay scale.
Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission."::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 :::
23 / 37 APP-271-05.odt It was further held that, equal pay must be for equal work of equal value. The accuracy required and the dexterity that the job entailed could differ from job to job. Functions could be the same but the responsibilities made a difference.
It was further held that these were not the matters where a Writ Court could lightly interfere and it was for the party claiming equal pay to establish its claim through necessary averments and to prove that all things were equal.
19. Mr. Gehani then relied on the case of K. Vasudevan Nair and others etc. Vs. Union of India and Others, reported in AIR 1990 Supreme Court Cases 2295. This case also lays down a similar ratio in respect of the principle of 'Equal pay for equal work'. He then relied on the observations of the Honourable Supreme Court in the case of State of Punjab and another Vs. Surinder Singh and another, reported in 2007 (115) FLR 1003 decided on 25/10/2007 in Civil Appeal ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 24 / 37 APP-271-05.odt Nos.5607-5608 of 2001, wherein it was held that there should be total and complete identity between two persons in similar situation so as to grant equal pay for equal work. The identity between two persons has to be complete and equal.
20. Mr.Gehani then relied on the judgment of Honourable Supreme Court in the case of Federation of All India Customs and Central Excise Stenographers (Recognised) and Others Vs. Union of India and Others, reported in AIR 1988 Supreme Court 1291. It was held in the said judgment that, 'Equal Pay for Equal Work' was a fundamental right, but equal pay must depend upon the nature of the work done, it could not be judged by the mere volume of work, there could be qualitative difference as regards reliability and responsibility. Functions could be the same but the responsibilities made a difference. It was also held that, there had to be an intelligible criteria for differentiation, having a rational nexus with the object of differentiation and then such differentiation would not amount to discrimination.
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21. Similar view was taken by the Honourable Supreme Court in the case of State of U.P. and others Vs. J.P. Chaurasia and others, reported in AIR 1989 Supreme Court 19 and in the case of State of Haryana and others Vs. Charanjit Singh and Others, reported in AIR 2006 Supreme Court 161.
22. As against these submissions of the learned counsel Mr.Gehani, for the Appellant the learned counsel for the Respondents Mr.Bapat submitted that the Respondents have sufficiently proved their case in respect of unfair labour practice committed by the Appellant. He has submitted that the duties of the two sets of watchmen i.e. beneficiaries under the Award i.e. (IT) No.13/84 and the present Respondents are similar. Not only that, some of the beneficiaries of the said award, were employed exclusively at the guest houses and Bungalows and there was no differentiation between those watchmen and the present Respondents. Therefore the benefits extended to the beneficiaries under the said award should be extended to the present Respondents. Not treating them on par with each other, ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 26 / 37 APP-271-05.odt clearly amounted to discrimination as envisaged under Item No.5 of schedule IV of the MRTU/PULP Act. This only shows favouritism or partiality towards the watchmen employed at the factory premises. Mr.Bapat further submitted that the settlement dated 24/07/1995 between the Appellant and the Bharatiya Kamgar Sena had no sanctity of law, as statutory requirements under section 2(p) r/w section 18 of the Industrial Disputes Act, 1947, were not complied with as rightly held by the learned Single Judge. Such settlement and the MOU were not binding on the present Respondents. He further submitted that the separate MOU dated 24/07/1995 could not be a part of the settlement of the same date and in any case was not binding on the Respondents.
23. In support of his contentions Mr.Bapat relied on the ratio laid down by the Honourable Supreme Court in the case of Workmen of M/s Delhi Cloth and General Mills Ltd. Vs. The Management of M/s Delhi Cloth and General Mills Ltd., reported in 1969 (3) Supreme Court Cases 302, wherein it was held that the question as to whether the settlement was ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 27 / 37 APP-271-05.odt valid and binding, was governed by the statute and the rules made thereunder. It was held that the settlement as defined u/s 2(P) r/w 18 of the Industrial Disputes Act means a settlement arrived in the course of the conciliation proceedings and includes a written agreement between the employer and workmen arrived at, otherwise than in the course of conciliation proceeding, where such agreement has been signed by the parties therein in such manner, as may be prescribed and a copy thereof has been sent to the appropriate Government and the Conciliation Officer. That section 18(1) of the said Act does not give unfettered freedom to the Management and the Union to settle the dispute as they pleased. It was clearly held that settlement had to be in compliance with the statutory provisions.
24. Having heard the learned counsel for the parties, we have carefully considered the rival submissions canvased by the two learned counsel. Unfair labour practice is defined u/s 26 of the MRTU/PULP Act as;
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28 / 37 APP-271-05.odt "Unfair labour practices :-
In this Act, unless the context requires otherwise, 'unfair labour practices' mean any of the practices listed in schedules II, III and IV. " Section 27 prohibits any employer or union from engaging any unfair labour practices and section 28 of the Act provides for the procedure for dealing with the complaints relating to unfair labour practice. Schedule IV of the said Act gives the list in respect of the unfair labour practice committed on the part of employers. Item Nos.5 and 9 under which the present complaints are filed are as follows ;
Item No.5 -: To show favouritism or partiality to one set of workers, regardless of merits.
Item No.9 -: Failure to implement award, settlement or agreement.
25. Section 2(p) of the Industrial Disputes Act, 1947 reads thus :-
"(p) "settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 29 / 37 APP-271-05.odt conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorized in this behalf by] the appropriate Government and the conciliation officer."
26. The core question in the present Appeal remains as to whether the present Respondents were victims of favouritism or partiality shown to other set of workmen, namely the watchmen employed at the factory premises so as to attract item 5 of Schedule IV of the MRTU/PULP Act. It has been the thrust of the arguments advanced by Mr.Gehani that the Watchmen/Security Guard employed at the factory premises were performing more arduous duty and their nature of work vastly differed from that of the present Respondents and therefore there was no discrimination disadvantageously meted out to the present Respondents. We are unable to accept the said submission of Mr.Gehani for more reasons than one. Firstly, the discrimination is not only between the present Respondents and workmen who were employed at the factory premises, but there is a clear unfair discrimination between the watchmen, who were beneficiaries under the Reference (IT) No.13/84 and the present ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 30 / 37 APP-271-05.odt Respondents. The said award was passed on 01/09/1994 and in the Writ Petition challenging that Award, consent terms were entered into by the Appellant that the workmen as mentioned earlier. Thus, the Security Guards under this Award were given benefit of the said Award. Perusal of the said Award clearly establishes that some of the watchmen, whose case was considered for the Award, were deputed at the Director's Bungalows and guest houses and the residential colonies.
27. On behalf of the Appellant it was contended that, in the proceeding of the said Reference (IT) No.13/84, some of the watchmen involved therein were employed at the Director's Bungalows, company's guest houses, company's quarters or at the construction site or at the Eastern Express Highway. Mr. Gehani submitted that the said Award does not indicate that the watchmen mentioned in the said Award worked exclusively at the guest houses, Bungalows and the company quarters and not at the factory premises. However, his submissions does not appear to be correct as paragraph No.24 of the said Award reads thus- ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 :::
31 / 37 APP-271-05.odt "24. Many of these workmen were deputed at Directors' Bungalow, guest house and residential colonies. There is nothing on record to show that Shri Harbans Singh had acetate (sic.) the Directors' bungalows, guest house, or site to supervise the watchmen's duty."
28. The cross examination of Mr.Daruwala shows that he had admitted that the watchmen namely G.S. Chaudhary, B.S. Birajdar, K.K. Singh, R.N. Singh, R.P. Singh, R.S. Mishta, R.P. Padoni and Lake Bahadur whose cases were considered under the said Award were exclusively working at the residential premises and guest houses, Director's Bungalows of the Appellant herein. Thus, it can be seen that such watchmen who were working at the residential premises, were given benefits under the said Award. The learned Single Judge in paragraph No.13 of his judgment has referred to Clause 4 of the consent terms signed in the Writ Petition. In the said clause it was mentioned that the aforementioned Babu Birajdar and others would be treated on par with factory watchmen. Therefore it is not open for the Appellant now to contend that the case of the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 32 / 37 APP-271-05.odt Watchmen who are the beneficiaries under the said Award is different from that of the present Respondents.
29. The learned Single Judge has rightly observed that the evidence shows that the workmen employed at the factory were barely given 24 hours training. The Respondents who were employed at the Bungalows and guest houses were guarding the property as also the life of people inside. Such responsibility was not very different from the workmen who were employed at the factory premises, to watch security of the goods and the people inside the factory premises. The learned Single Judge further held that it was unreasonable to treat the workmen differently because of their posting.
30. In all the judgments cited by Mr.Gehani, the ratio laid down in those judgment is clear enough and there is no doubt that the law propounded by these judgments is sufficiently established. Even Mr.Bapat did not dispute the ratio of such judgments. It is quite obvious that all these judgments clearly laid down, the criteria for the applicability of the theory of 'equal ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 33 / 37 APP-271-05.odt pay for equal work'. In the instant case it would have to be borne in mind that the adjudication by way of Reference (IT) No.13 of 1984 has intervened, wherein the adjudication as to whether the workmen concerned in the said Reference (IT) No.13/84 are to be treated on par with the permanent watchmen has already taken place. Hence the principle of 'equal pay for equal work' has to be applied in the said context. We are therefore of the considered view that after applying the criteria put forth by the judgments (supra) the Respondents are entitled to be treated on par with the beneficiaries of the Award Reference (IT) No.13/84 and also on par with the Watchmen employed at the factory premises. After the Appellant had entered into the consent terms in the Writ Petition challenging the award under Reference (IT) No.13/84, it is not open for the Appellant to now contend that the nature of the duties and work of the present Respondents was different from the Watchmen employed at the factory premises. As discussed earlier, even the aforementioned Award had extended benefit to the Watchmen who had never worked at the factory premises and they were ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 34 / 37 APP-271-05.odt treated on par with the Watchmen at the factory premises. Since the said Award was accepted and acted upon by the Appellant, it is definitely not open for it to now to contend that the present Respondents are performing different duties, than the Watchmen employed at the factory premises. Thus, this is a clear case of discrimination by not extending said benefits to the Respondents and hence unfair labour practices listed in Item No.5 of the Schedule IV of the MRTU/PULP Act is clearly made out.
31. It was also contended by Mr.Gehani that the settlement dated 24/07/1995 entered into between the Appellant and Bharatiya Kamgar Sena which was a recognized trade union was binding on the present Respondents. Here again we are unable to agree with Mr.Gehani. Clause (9) of the said settlement reads thus;
9. Outside Employees It is agreed by and between the parties that with a view to bring into the mainstream the employees engaged at Guest Houses and Residential premises of the Company and referred to as the "Outside ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 35 / 37 APP-271-05.odt Employees", a separate memorandum of understanding will be signed between the parties.
32. Thus, it can be seen that the settlement deed did not include the present Respondents. Curiously on the same day i.e. 24/07/1995 a separate MOU was entered into between the Appellant and the Bharatiya Kamgar Sena, in respect of service conditions applicable to the employees engaged at guest houses and residential premises. The terms and conditions of such MOU were grossly unfair to such employees, who are the complainants. We are unable to uphold the contention of Mr.Gehani that MOU was binding on the present Respondent. Firstly this MOU was not a part of the settlement executed on 24/07/1995. Clause (9) of the said settlement clearly mentions that a separate MOU was to be executed in that behalf, which means this MOU could never be the part of the settlement. Secondly, the said MOU was executed on the same day, which also indicates that no negotiations or no discussions were held before entering into this MOU. Thirdly as pointed out by Mr.Bapat that there is nothing to show that the statutory requirements as mentioned u/s 2(p) r/w 18 of Industrial ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:37:59 ::: 36 / 37 APP-271-05.odt Disputes Act, were complied with and that this settlement was forwarded to the Authorized Officer as envisaged u/s 2(p) r/w 18 of Industrial Disputes Act. The learned Single Judge has rightly held that the settlement was collusive and hence was not fair and was made against the interest of the persons for whom it was meant to benefit.
33. Hence considering all aspects of the matter, we are of the view that the Appellant herein has not made out any case for interference. The findings recorded and reasoning given by the Industrial Dispute Court as well as the learned Single Judge of this Court do not call for any interference in the Appellate jurisdiction of this Court. All the above Appeals accordingly stand dismissed. The Appellant, however to comply with the directions as contained in Clause (ii) of the operative part of the Judgment and Order passed by the Industrial Court dated 06/05/2004 in the matter of extending the benefits available to the permanent watchmen to the Respondents/Original Complainants; within a period of eight weeks from date.
(SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)
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At the time of pronouncement :-
rd
23 November, 2017
The learned counsel for the Appellant prays for stay of the instant order for a period of 12 weeks. In view of the fact that we have granted 8 weeks time to the Appellant to make compliance, the need to stay the instant order is obviated. Hence the request is rejected.
(SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)
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