Rashtriya Kamgar Kranti Union vs Darabshaw B. Cursetjee'S Sons ...
2001 Latest Caselaw 908 Bom

JUDGMENT

Nishita Mhatre, J.

1. By this petition, the petitioner had impugned the Award dated 20-9-1997 of the Central Government Industrial Tribunal in reference CGTT No. 1 of 1999.

2. The facts giving rise to the present petition are as follows:

Respondent No. 1 company is engaged in clearing and forwarding business and various other related activities in the Mumbai Port. At the relevant time, respondent No. 1 engaged 62 workmen in their Barges Department. These workmen had worked for about 30-35 years with respondent No. 1. The National Dock Workers Union which represented the workmen at that point in 1989 signed a settlement on 14-8-1989 with respondent No. 1. Respondent No. 1 agreed not to retrench any workman. Thereafter a group of workmen joined the Transport Dock Workers Union. On 5-6-1990, respondent No. 1 displayed a notice of retrenchment on three barges retrenching all the 62 workmen of the Barges Department. A dispute was raised by both National Dock Workers Union as well as the Transport Dock Workers Union. A settlement was signed by the Transport Dock Workers Union on 19-6-1990 with respondent No. 1 in conciliation. The same settlement was accepted and signed by National Dock Workers Union on behalf of the workers that they represented on 21-6-1990. By the said settlement, both the unions in effect agreed to the termination of the service of all the employees on the basis of the retrenchment notice dated 5-6-1990. Under this settlement, besides other amounts which were payable to the workmen, retrenchment compensation was to be paid to the workmen on the basis of the provisions of law. Some amounts were accordingly paid to the workmen by respondent No. 1. It appears that the workmen on realising that there was a short-fall in the amounts payable to them under the settlement, approached the petitioner union and a demand was raised by the petitioner initially on behalf of 38 workmen, who were earlier the members of the Transport Dock Workers Union and thereafter in respect of the other 24 workmen, who resigned from the National Dock Workers Union.

3. Conciliation proceedings were held which ended in failure. On the basis of the failure report sent, the appropriate Government preferred the matter for adjudication on 12-1-1995. The dispute referred to the Central Government Industrial Tribunal is as follows:

"Whether the action of the management of M/s. Darabshaw B. Coursetjee's Sons (Bombay) Pvt. Ltd., in terminating the service of Shri Madhukar R. Mahakal and 37 other workmen and Shri Shantaram Bhagoji Jadhav and 23 others workmen (as per list attached) with effect from 6-6-1990 is legal and justified. If not, to what extent relief the workmen are entitled to?."

4. The petitioner filed a statement of claim on behalf of the workmen wherein it was pleaded, inter alia that the termination of service of the 62 workmen on the basis of the agreement between the erstwhile unions on one hand and respondent No. 1 on the other hand was not valid and therefore, the same is illegal, improper and bad in law and that the principles of "last come first go" were not followed. It was also contended that assuming that the settlement signed by the two unions with respondent No. 1 on behalf of all the workmen is valid, the payment made in respect of the retrenchment compensation was short as the calculation was not correct and that this would amount to illegal retrenchment of service of the concerned 62 workmen.

5. Respondent No. 1 filed written statement wherein they raised the contentions, inter alia, that the petitioner did not represent the 62 workmen and therefore, had no locus to raise the dispute on behalf of these workmen, that the workmen were bound by the settlement and, therefore, could not raise any dispute regarding termination of service; that there is no privity of contract between the petitioner and respondent No. 1 and the petitioner could not represent the workmen. However, respondent No. 1 is silent in the Written Statement regarding the short-payment of retrenchment compensation.

6. Evidence was led before the Industrial Tribunal and calculations were filed by the petitioner showing the extent of shortage of retrenchment compensation to the concerned 62 workmen. This statement is annexed to the petition. It appears from this statement that there is a short payment of Rs. 4,70,064/- in respect of the retrenchment compensation. The statement also shows that the salary paid to the workmen was less than what was due and payable to them and hence, the calculations in respect of almost all the heads of payments is incorrect.

7. By an order dated 20-9-1997, the Industrial Tribunal rejected the reference and held that the reference itself was not maintainable as the settlement arrived at between the employer and the recognised unions regarding the retrenchment of workmen was binding on the workmen and they were estopped from rescinding from the settlement. The Industrial Tribunal further took the view that the settlement was just, fair and reasonable and equitable besides being generous. The Tribunal was of the opinion that there was no dispute on the date of the reference as the dispute regarding retrenchment did not survive as there was a settlement between the workmen through their respective unions on the one hand and respondent No. 1 on the other. As regards short fall in payment, the Tribunal held that the retrenchment compensation paid on the basis of the law then prevalent, could not be considered as incorrect on the basis of a subsequent judgment delivered by this Court. The termination of service of the concerned workmen was validly effected according to the Industrial Tribunal. The Tribunal, however, upheld the right of the petitioner to represent and espouse the cause of the concerned 62 workmen.

8. Mr. Pai, learned Counsel appearing on behalf of the petitioner, submitted that the Tribunal had erred in rejecting the reference on the ground that it was not maintainable. He submitted that the dispute between the workmen and the employer, that is, respondent No. 1 herein, was whether retrenchment is valid and in accordance with law and, therefore, merely because the date mentioned in the reference was 6-6-1990, it did not render the reference invalid. He submits that the reference also required the Tribunal to determine as to what relief the workmen were entitled to. In view of this, he submits that it was open for the Tribunal to decide as to whether the workmen were legally retrenched from service, on 6-6-1990 or 21-6-1990.

9. This argument of Mr. Pai deserves acceptance as the Tribunal should not have taken a hypertechnical view and should have determined as to whether there was in fact an industrial dispute subsisting between the parties. In fact the order of reference is wide enough to cover the contingency faced by the Tribunal. It must, therefore, be held that the reference is maintainable. It was open for the Tribunal to mould the relief in terms that would give the workmen the relief from 21-6-1990 and not from 6-6-1990. According to the Tribunal, the services of the workmen came to an end only on 21-6-1990.

10. The next contention of Mr. Pai is that the settlement itself is not fair and proper and that the Tribunal ought to have held that the workmen were entitled to reinstatement with continuity in service with full back wages. This submission of Mr. Pai, I am afraid, cannot be accepted as the workmen had agreed through their respective unions to settle the dispute which was raised by their respective unions, that is, Transport Dock Workers Union as well as National Dock Workers Union and had agreed to accept retrenchment compensation in accordance with law besides other payments. It would, therefore, not be open for the workmen to agitate the same issue once again in a reference. However, that would not end the matter as argued rightly by Mr. Pai. Assuming that the settlement is valid, correct and legally binding on both the parties, it was necessary for the Tribunal to determine whether the amounts paid to the workmen under the settlement were correct. This is in view that the reference is so worded and the Tribunal was required to give relief accordingly. It appears that due to incorrect calculation of the retrenchment compensation, the amount due & payable under section 25-F of the Industrial Disputes Act has not been paid to the workmen. The Tribunal laboured under a serious misconception that the law which prevailed prior to judgment of this Court in the case of Trade-Wings Limited v. Prabhakar Dattatram Phodkar of Bombay & others, reported in 1992(2) Bom.C.R. 624: 1992 H.C. (Bom.)480 was different and that therefore, there was no shortfall in payment of retrenchment compensation by respondent No. 1. The judgment has merely declared the law as it stood. It was therefore, encumbent on respondent No. 1 to make payment on the basis of calculations for retrenchment compensation as set out in the Trade Wings judgment. Respondent No. 1 was bound to pay retrenchment compensation of monthly wages 26 x 15 x the number of years in service. In view of this, the dispute would have to be remanded to the Tribunal for determination of the amounts payable to the concerned workmen based on the correct calculations.

11. Mr. Pai also submits that under section 25-J of the Industrial Disputes Act, the employer has to pay retrenchment compensation in accordance with Chapter V-A of the Industrial Disputes Act despite there being settlement to the contrary. He submits that there cannot be any 'contracting out' where payment of Counsel bases his argument on the judgment in the case of Petlad Bulakhidas Mills Co. Ltd. v. Ramabhai Bhikhabhai, reported in 1995 H.C. (Guj.)494. This submission of Mr. Pai deserves acceptance.

12. Taking any view of the matter, the workmen represented by the petitioner would be entitled to an amount which is higher than the amount already paid to them. This would be required to be determined by the Industrial Tribunal and therefore, the reference is remanded to the Tribunal for determination of the exact amounts due and payable to each workman. The Tribunal shall determine the amount as expeditiously as possible and not later than June 30, 2002.

12-A. Rule is, accordingly, made absolute, writ petition is disposed of in the abovestated terms. However, there shall be no order as to costs.

Parties to act on an ordinary copy of this order duly authenticated by the Court Sheristedar.