Biddle Sawyer Ltd. And Anr. vs Chemical Employees Union
2003 Latest Caselaw 673 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned advocates for the parties.

2. Perused the records.

3. The petitioners challenge impugned order dated September 17, 1999, passed by the Industrial Court, Bombay in Complaint (ULP) No. 1267 of 1998. By the impugned order, the Industrial Court while rejecting the application of the Petitioner for deletion of the name of the Petitioner No. 2 from the proceedings, has, allowed the application filed by the Respondent for direction to the petitioners to produce the agreement between the Petitioner No. 1 and the Petitioner No. 2 relating to the sale of 100% equity share capital of the petitioner No. 1 in favour of the petitioner No. 2.

4. The order of rejection of the application filed by the petitioner for deletion of the name of petitioner No. 2 from the proceedings before the Industrial Court is sought to be challenged on the ground that the grievance of the Respondent/Complainant relates to the adoption of the unfair labour practices by the employer, and that the petitioner No. 2 being the 100% shareholder of the petitioner No. 1 cannot be termed as the employer of the employees of the petitioner No. 1 and that considering the fact that the petitioner No. 2 is sought to be impleaded merely on the basis of alleged merger of the two companies as well as alleged oneness into two companies, according to the petitioners, there is no case for proceedings against the petitioner No. 2. It is their further contention that the said application has been dismissed without considering that in absence of statutory procedure for merger being followed there cannot be oneness in relation to two companies and merely because the petitioner No. 2 holds 100% share in the petitioner No. 1 - Biddle Sawyer Limited, it does not become the employer of the employees of the Petitioner No. 1 and, that therefore impugned order is bad in law. As far as, the impugned order directs the production of the agreement is concerned, the same is sought to be challenged on the ground that the direction was issued on the basis that consequent to the said agreement, the petitioner No. 1 had launched Voluntary Retirement Scheme (VRS) which according to the respondent was amounting to act of unfair labour practice, and that therefore, the agreement was relevant for resolving the controversy, and there being no other ground disclosed for production of agreement and as the petitioners have withdrawn the said VRS which was declared on August 6, 1990, the production of the agreement would not help to resolve any controversy in the matter, nor it is required for any purpose.

5. On the other hand, the contention of the respondents is that though in legal sense, there may not be merger of two companies, yet factually the managerial control of the petitioner No. 1 is in the hands of the petitioner No. 2 and all actions by the petitioner No. 1 are controlled by the petitioner No. 2 and, that therefore, eventhough, the employees of the petitioner No. 1 may not be the employees of the petitioner No. 2, the decision for launching of VRS by the petitioner No. 1 was at the instance of the petitioner No. 2, and therefore, the petitioner No. 2 is a proper and necessary party to the proceedings. As regards the direction for production of the agreement, the same is sought to be justified by the respondent submitting that eventhough VRS declared on August 6, 1990 has been stated to be withdrawn, and though the complaint as was filed initially might be referring to the issue of VRS, the complaint has been amended and such amendment was carried out even prior to the passing of the impugned order. The amended pleadings disclose the activities on the part of both the petitioners to the detriment of interest of the employees of the petitioner No. 1 and that actually the unfair labour practice by the petitioner No. 1 being at the instance of the petitioner No. 2 as alleged by the complainant, the terms of the agreement would necessarily assist the Industrial Court to arrive at the correct conclusion in the matter and hence no fault can be found with the direction to produce such document. At the same time, the respondents have submitted that the impugned order being of interlocutory nature inasmuch as that the production has been directed only for the purpose of keeping the agreement under seal in control of the Industrial Court without disclosing the contents thereof to the respondents till the appropriate decision in that regard is taken by the Industrial Court after perusing the said document by itself, there is no case made out for interference in writ jurisdiction and reliance is sought to be placed in the decisions in the matter of Hindustan Lever Mazdoor Sabha v. Hindustan Lever Ltd. and Anr. , Syed Yakoob v. Radhakrishnan, and in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. .

6. Before proceeding to consider the rival contentions in relation to the impugned order, it is necessary to deal with the objection which is raised on behalf of the respondent to the maintainability of the petition itself on the ground that there is no case for interference in the impugned order in writ jurisdiction as the Court below has passed the reasoned order. At the outset, it is to be noted the respondents are not entitled to raise any such objection at this stage as the rule was issued in the matter after hearing the parties. As the time of issuance of rule, speaking order was passed disclosing justification for consideration of matter on merits. Being so, it is too late for the respondents to raise any objection regarding the maintainability of the petition. Even otherwise, the decisions sought to be relied upon do not assist in any manner to the respondent to justify rejection of the petition in limine. In Syed Yakoob's case (supra) while dealing with the issue relating to the limits of the jurisdiction of the High Court in issuing writ of certiorari while dealing with the orders passed by the appropriate authorities granting or refusing to grant permits under the provisions of Motor Vehicles Act, 1939 and particularly in relation to carriage permits, it was ruled that writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals and a writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, and that it is a supervisory jurisdiction and is not to be exercised as an appellate Court. It was specifically observed that the limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be revoked or quashed in writ proceedings, and that an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In Indian Overseas Bank, the Apex Court had noticed that the learned single Judge of the High Court had undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions, of his own on pure questions of fact, unmindful, and though fully aware that he was not exercising any appellate jurisdiction over the awards passed by a Tribunal. It has observed that the order of the Industrial Court was based on well-founded materials which constituted an ample and sufficient basis for the findings which were recorded by it and, therefore, those findings which were confirmed by the Division Bench while setting aside the order of the learned single Judge, were approved. In Hindustan Lever Mazdoor Sabha's case (supra) the learned single Judge considering that the order passed by the Industrial Court for production of documents being interlocutory order refused to interfere therein in writ jurisdiction. It is pertinent to note relating to this decision by the learned single Judge that while refusing to interfere in the order of the Tribunal the Court had taken note of the fact that there was already a direction in Writ Petition No. 1804 of 1998 to the Industrial Court to dispose of the matter within six months and further that the documents which were directed to be produced were those which were required to be filed in the office of the Registrar, Trade Unions under Section 28 of the Trade Unions Act, 1926, and the certificate of registration issued to Hindustan Lever Mazdoor Sabha and the list of members of Sabha. The documents were directed to be produced by the Tribunal in view of the fact that the issue before the Tribunal was relating to locus standi of Hindustan Lever Mazdoor Sabha to represent the employees concerned in the Reference before the Tribunal. Apparently, neither the decision in Indian Overseas Bank (supra) nor Hindustan Lever Mazdoor Sabha are in any manner relevant for the consideration of the objection which is sought to be raised in the case in hand. As regards, decision in Syed Yakoob's case (supra) it is noticed that this Court had interferred in the findings of fact, and such an interference was not approved. Being so, the decisions sought to be relied upon are of no help to the respondents, even to contend that there is no case for interference in writ jurisdiction. Besides, the contention of the petitioners is that pursuant to the declaration given by the petitioners that the petitioners have withdrawn the decision dated August 6, 1990 pertaining to VRS and that therefore, the impugned order in that regard does not survive as the sole basis for direction for production of document was the decision pertaining to VRS. In other words, the very purpose for which the direction was issued no more survives, and being so, allowing the impugned order to remain in force would cause prejudice to the petitioner inasmuch as that it has been consistent stand of the petitioner that the agreement in question contains disclosure of the price at which rate the shares were transacted and the same has no relation whatsoever to the matter in issue, apart from the fact that the petitioners do not want those facts to be disclosed either to the respondent or to the strangers. Undisputedly, the agreement is a private document which includes various facts relating to the transaction pertaining to the conveyance of shares in the petitioner No. 1 in favour of the petitioner No. 2 and by no stretch of imagination can relate to the allegation of unfair labour practice being adopted by the petitioners. Being so, considering subsequent events in the matter inasmuch as that the petitioners having confirmed that they have revoked the decision in relation to launching of VRS and the fact that the direction for production of documents was issued solely on the basis of launching of VRS which according to the respondents resulted in adoption of unfair labour practice by the petitioner No. 1, the question of restrictions on the exercise of jurisdiction by this Court does not rise at all in relation to the said order.

7. Undoubtedly, it was sought to be argued on behalf of the respondents that the order for direction to produce the documents was not based solely on the decision pertaining to VRS, but the Industrial Court had taken into consideration all other factors which have been dealt with in the impugned order while dealing with the issue pertaining to the joinder of the petitioner No. 2 as one of the opponents to the complaint and the impugned order read as a whole would disclose that the order for production of documents has been passed after taking into consideration all those factors. The contention of the learned advocate for the respondent in this regard is devoid of substance. Bare reading of impugned order discloses that it is the sole ground which was agitated by the respondent to justify the order for production of the documents. The argument advanced by the advocate for the respondent before the Tribunal recorded in the impugned order clearly disclose that the respondents had sought to justify the production of the said document solely on the basis that respondents required the production of the said document to establish their contention regarding adoption of unfair labour practice on account of launching of VRS. The Tribunal has quoted the argument of the learned advocate for the respondents, thus:

"The learned counsel Shri Arshad Shaikh, therefore, submitted that what has been challenged in the instant Complaint is a declaration of Voluntary Retirement Scheme launched by the Respondent Biddle Sawyer Limited being in adoption of unfair labour practices. Therefore, the production of the agreement is relevant for resolving the controversy as the same would show the interdependence, financial integrality and oneness among the Respondent Biddle Sawyer Limited, Croydon Chemical Works Pvt. Ltd. and Meghdoot Chemical Pvt. Ltd."

8. The Tribunal has held that in its considered view, the learned counsel Shri Arshad Shaikh has succeeded in showing the relevancy of the said agreement for resolving the controversy in the Complaint under consideration. This finding has been preceded by the submissions by learned counsel for the respondents, thus: "It is, therefore, highly essential and relevant for resolving the controversy in the present Complaint, to direct the Respondent Biddle Sawyer Limited and the Respondent Glaxo India Limited to place on file the copy of such agreement selling the 100% of the equity share capital." 9. Apparently, the sole grievance of the complainant was that by launching of VRS the petitioner No. 1 has adopted unfair labour practice and the same is at the instance of the petitioner No. 2 and the dispute in that regard can be resolved by referring to the agreement in question. Apparently, therefore, the production of documents was asked solely on the ground that the allegation of the respondent relating to adoption of unfair labour practice by the petitioner and would be revealed from the said agreement. It is declared by the petitioners that they are revoking the decision dated August 6, 1990 in relation to launching of voluntary retirement scheme, and therefore, the grievance in the complaint in relation thereto cannot survive and therefore, production of agreement becomes totally redundant. Being so, I do not find any substance in the objections sought to be raised on behalf of the respondent for interference in the impugned order in relation to the direction for production of the documents and for the reasons stated above, I find no justification to allow the impugned order in that regard to remain on record. Hence the impugned order directing the petitioners to produce the document needs to be quashed and set aside. 10. As regards challenge to the order pertaining to disposal of the application for deletion of the name of the petitioner No. 2 from the proceedings before the Industrial Court, attention was drawn to the order passed by the learned single Judge on March 31, 1998 in Writ Petition No. 530 of 1998 as well as by the Division Bench on November 19, 1998 in Appeal No. 1136 of 1998 against the said order of the learned single Judge. It is true that the learned single Judge considering the fact that Glaxo India Limited and Biddle Sawyer Limited namely the petitioner No. 2 and 1 respectively herein, held that they are different legal entities and merely because they may merge in future cannot be a ground to hold them to be one undertaking and the said finding has not been interfered with by the Division Bench. However, the said finding was in relation to the Reference matter and that therefore the contention of the learned advocate for the respondent is that bearing in mind Sections 29 and 30 of the MRTU & PULP Act, 1971, the point considered as to whether the acts of unfair labour practice are being committed by the petitioner No. 1 either being under the control of the Petitioner No. 2 or at the instance of the Petitioner No. 2 irrespective of the fact whether they are merged or not and that the unfair labour practices by the employer may be in connivance with or at the instance of the outside agency and even such strangers who are involved in the matter can be proceeded against and dealt with and can be made responsible for the action of unfair labour practice by the order that may be passed by the Industrial Court while disposing the complaint under the said Act. Section 30(1) Clause (a) of the Act provides, where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order direct that an unfair labour practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice. Clause (b) empowers the Court to direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action including the payment of reasonable compensation to the affected employee or employees or to direct reinstatement of employee or employees with or without back wages, or the payment of reasonable compensation, as may be in the opinion of the Court be necessary to effectuate the policy of the Act. It is also the contention of the learned counsel for the respondent that pursuant to the decision of the learned single Judge in Writ Petition No. 6633 of 2002, dated November 29, 2002, the issue as to the necessity of the petitioner No. 2 to be the party opponent to the proceedings stands concluded though the said decision has been delivered in writ petition arising out of the order passed in another complaint between the same parties. The contention is sought to be controverted by the learned counsel for the petitioner by saying that the said decision was delivered prior to the filing of written statement. Certainly, as rightly submitted by the learned counsel for the petitioner that the decision which has been delivered even prior to the filing of the written statement on the issue of continuation of a party to the proceedings to enable the original Court to deal with the issue after hearing the parties, cannot be of any assistance in a case where the issue to be dealt with subsequent to the filing of the pleadings by all the parties. 11. The fact however, remains that it is the contention of the respondent that the unfair labour practice is being adopted by the petitioner No. 1 at the instance of the petitioner No. 2 as the latter is in position to control the entire management of the petitioner No. 1 since the latter holds 100% share capital in the petitioner No. 1. The said fact that the 100% share capital is being controlled by the: petitioner No. 2 is not in dispute. Whether there is amalgamation of both the companies or not is totally different issue. For the purpose of consideration of the allegation regarding adoption of unfair labour practice, it is; necessary for the Court to apply its mind to the allegations in the complaint and materials to be produced by the parties in that regard and when the allegations are to the effect that such practice is being adopted by the employer on account of its management under the control of another agency or undertaking, on that count another agency or undertaking is being made party to the proceedings, it will be too premature to decide the issue as to whether such agency or undertaking is necessary or not for such proceedings, right at the initial stage itself. It will all depend upon the pleadings and the materials to be produced by the parties in support of the pleadings. It is the case of the respondent that though initially the complaint was filed only on the allegation that the unfair labour practice is adopted on account of launching of VRS and though the decision to launch VRS has been revoked, the complaint includes other allegations which would necessitate continuation of the petitioner No. 2 as party to the proceedings. Merely because VRS has been revoked would not be a justification to contend that no purpose would be served in continuing the petitioner No. 2 as the party to the proceedings. 12. The Industrial Court while dismissing the application in that regard has also taken a note of the allegation on the part of the respondent that in the process of reorganisation, restructuring, rationalisation, standardisation and improving plant or technique of the petitioner No. 1 by the Petitioner No. 2 and its officers have adopted unfair labour practice towards the employees of the petitioner No. 1. Certainly, it would be the matter of evidence to be gone into in that regard and merely because VRS has been withdrawn, it cannot be said that the decision of the Industrial Court in dismissing the application of the petitioner for deletion of the name of the petitioner No. 2 from the proceedings to be bad in law. It is clear from the provisions contained in Sections 29 and 30 of the said Act. Being so, I do not find any illegality committed by the Industrial Court in dismissing the application filed by the petitioner for deletion of the name of the petitioner No. 2 from the proceedings. 13. It was sought to be contended on behalf of the petitioner that complaint being related to the grievance pertaining to the VRS and consequential alleged unfair labour practice and as the decision regarding launching of VRS having been withdrawn, nothing survives in the complaint itself. Certainly, the petitioner would be entitled to raise this issue before the Industrial Court. It will not be appropriate for this Court to deal with the said issue without affording an opportunity to the parties to raise the said issue before the Industrial Court and without inviting an appropriate order in that regard by the Industrial Court on such issue. 14. In the result, therefore, the petition partly succeeds. The impugned order as far as, it relates to the direction to produce the document is hereby quashed and set aside. The impugned order as far as it relates to the issue of deletion of the name of the petitioner No. 2 from the proceedings before the Industrial Court, the same does not warrant any interference. Rule is made absolute accordingly with no order as to cost.