Bombay High Court
Sewakram S/O Raghunathji ... vs Maharashtra State Textile ... on 26 July, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.579 of 2016
1] Sewakram Raghunathji Potbhare,
Aged Major, Occ.Nil,
2] Prakash Nathuji Pande,
3] Ashok Narayanrao Dhulandar,
4] Namdeo Nagorao Shrikhande,
5] Dilip Manthuji Lohi,
6] Tejraj Akaram Borkar,
7] Dilip Nathuji Dhage,
8] Murlidhar Tatyaji Shastrakar,
9] Shriram Chintamanrao Rajurkar
10] Vijay Anandrao Tajne,
11] Vilas Damodarrao Pahapalkar,
12] Deorao Ramaji Zade,
13] Manohar Pundlikrao Tapre,
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14] Babbu Khan Kamdar Khan Pathan,
15] Parasram Maniramji Tabhane,
16] Ashok Harinath Marotkar,
17] Baba Khushalrao Khandekar,
18] Ratnakar Nagorao Dehankar,
19] Laxman Nathuji Raut,
20] Nilkanth Govindrao Mankar
21] Anandrao Vasudeorao Wasnik,
22] Ramesh Kisanji Gahukar,
23] Chandrabhan Madhavrao Ikhar,
24] Ramesh Shalikramji Tonge,
25] Shankar Ramaji Chimote,
26] Murlidhar Shamraoji Gahukar
27] Hemraj Pandurangji Hajare,
28] Arun Shankarrao Bhoskar,
29] Bhaurao Beniramji Shrikhande
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30] Baban Nathuji Ghate
31] Vilas Balaramji Bagde
32] Suresh Dadaraoji Chimote
33] Laxman Ramaji Dharmik
34] Suresh Pandurangji Bokde
35] Bhimrao Nathuji Likhare
36] Bhaskar Pandurangji Potbhare
37] Motiram Chirkut Bawane
38] Sopinath Ramraoji Chandekar
39] Baban Govindrao Kohad
40] Kashinath Dhondbaji Patil
41] Pramod Ramdasji Chikte
42] Jagdish Madhukarrao Kadwe,
All are major by age and R/o
C/o Sewakram Raghunathji Potbhare,
At and Post Gondkhairi, Tah. Kalmeshwar,
Distt. Nagpur. .... Petitioners.
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-Versus-
1] Maharashtra State Textile Corporation Ltd.,
Lotus House, Sir Vithaldas Thakersi Marg,
Mumbai-400020.
2] Kalmeshwar Textile Mills,
through its General Manager,
C/o.-Authorized Officer, Empress Mills Premises,
Sir Bezonji Mehta Marg, Nagpur.
3] State of Maharashtra,
through Ministry of Industries, Energy and Labour,
Mantralaya, Mumbai 400032. .... Respondents.
-------------------------------------------------------------------------------------
Mr. S.A. Kalbande, Counsel for petitioners.
Mr. R.B. Puranik, Counsel for resp. nos. 1 and 2.
Mr. H.D. Dubey, AGP for resp. no.3.
-------------------------------------------------------------------------------------
Coram :
KUM. INDIRA JAIN, . J
th
Dated : 26 July, 2017.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally with
the consent of learned Counsel for the parties.
2] The challenge in this petition is to the judgment and order
dated 14-08-2015 passed by the learned Industrial Court,
Nagpur in Complaint (ULP) No.210 of 2003, thereby dismissing
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the complaint filed by the petitioners claiming arrears of
difference of wages as ex gratia with effect from April/May, 2001
till 31-03-2003 on the basis of minimum piece rates under the
Settlements of 1985 and 1996. In addition to the difference of
wages petitioners also claimed gratuity with interest at the rate
of 12%.
3] The facts giving rise to the petition may be stated in
nutshell as under:-
The respondent no.2 is subsidiary Company under the
control of respondent no.1-Maharashtra State Textile
Corporation Limited. Respondent no.3 is recognized Union
under the Bombay Industrial Relations Act, 1946 (for short,
'B.I.R. Act, 1946'). It was the case of the petitioners that on
05-06-1985 Settlement was entered into between respondent
nos. 2 and 3. As per the terms and conditions of the said
Settlement minimum basic wages were fixed for the employees
engaged on piece rate basis on the posts of Weaver, Reliever,
Beam Gaiter and Tackler/Jobber of Weaving Department.
4] On 10-01-2001 State of Maharashtra took a policy
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decision to close down the textile mills functioning under the
control and supervision of respondent no.1. The grievance of
complainants is that respondent no.2 failed to close its
establishment and consumed time deliberately with an intention
to cause monetary loss to the workers. It is submitted that
respondent no.3- recognized Union did not take steps to contest
the policy decision of State Government even after service of
closure application and acted in an irresponsible manner.
5] Another grievance of petitioners is that respondent nos.2
and 3 executed Memorandum of Agreement dated 25-09-2002
under Section 44(1) of the B.I.R. Act, 1946 and flouted
Voluntary Retirement Scheme based on Gujarat pattern without
considering Voluntary Retirement Scheme of employees made
applicable by closing down the other Mills. According to the
complainants respondent nos.2 and 3 acted in collusion and
they were engaged in unfair labour practices as per Items 3
and 9 of Schedule IV of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (for short, 'MRTU and PULP Act').
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6] The next contention raised on behalf of complainants is
that in Memorandum of Agreement if basic salary of employees
is less than Rs.350/- then for the purpose of calculation of
ex gratia minimum basic salary of Rs.350/- will have to be
considered and the benefits under the Voluntary Retirement
Scheme will have to be extended to the employees other than
the employees working in Weaving Department. The
complainants contended that they were working in Weaving
Department and were drawing piece rate wages of Rs.180/- for
26 days in a month. However, while calculating Voluntary
Retirement Scheme benefits though they were entitled for
wages at the rate of more than Rs.350/- as per the terms and
conditions of Settlement they were paid less.
7] A grievance is also made by the complainants that
respondent no.2 was running total 7 Loom Sections in Weaving
Department. The employees working in Weaving Department
were directly connected with the production activities and they
were getting annual increments since 1985. According to the
complainants respondent no.2 was responsible for reduction of
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production and respondent no.3-Union has not taken steps
though less wages than prescribed under the Settlement were
calculated.
8] It is further submitted that several representations were
made to respondent nos.1 and 3. Though the complainants
persistently raised voice respondent no.2 did not extend
Voluntary Retirement Scheme benefits to the complainants and
they were constrained to file a complaint under Section 28 of
the MRTU and PULP Act, before the Industrial Court.
9] Respondent no.1 filed written statement and opposed the
claim. According to respondent no.1 basic wages actually
earned by complainants were between the range of Rs.205.05
and Rs.372.90 on the basis of piece rated production given by
them in the Weaving Department. The contention was that the
average of basic wages of complainants comes to Rs. 267.50
only. However, as per the Memorandum of Agreement dated
25-09-2002 based on Gujarat pattern of Voluntary Retirement
Scheme complainants were paid ex gratia amount of Voluntary
Retirement Scheme at the rate of Rs.350/- as their basic wages
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and though actual wages earned by complainants were on
lower side they got the benefit of minimum basic of Rs.350/-.
Referring to one of the employees of Weaving Department
Mr. D.S. Gathibandhe, respondent no.1 submitted that ex gratia
benefit at the rate of Rs.372.90 was extended to the said
employee as he worked in the same department in which
complainants were working and still yielded higher production.
Respondent no.1 denied alleged violation of terms and
conditions of the Settlements and submitted that complainants
themselves were responsible for less production in their
department.
10] Considering the pleadings, evidence adduced by the
parties, Settlements dated 05-06-1985 (Exhibit-93) and
11-12-1995 (Exhibit-94) and the other documentary evidence,
the Industrial Court came to the conclusion that complainants
are not entitled to receive difference in arrears of wages as
claimed by them. In consequence thereof, complaint came to
be dismissed. Hence this petition.
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11] Heard Mr. Kalbande, learned Counsel for petitioners and
Mr. Puranik, learned Counsel for respondent nos.1 and 2.
12] The learned Counsel for petitioners submitted that
according to the Settlement basic pay of petitioners was more
than Rs.350/- but while calculating ex gratia, wage structure
given in the agreement was not considered by respondents.
The submission is that ex gratia payment calculated on the
basis of average wages is not in accordance with the
Settlement and complainants cannot be held responsible for
reduction of the production. According to learned Counsel in
the Settlement of 1995 basic fixed for the posts held by the
complainants was :-
Sr.No. Occupation Basic as per Agreement 1995
1. Takler Rs. 448.72
2. Reliever Rs. 389.24
3. Weaver Rs. 371.90
4. Beam Gaiters Rs. 397.50
5. Asstt. Takler Rs. 325.67
It is submitted that the respondents should have
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calculated monetary benefits considering the basic fixed as per
1995 Settlement and having not considered they caused huge
monetary loss to the employees thereby engaging themselves
in unfair labour practices.
13] In support of the submissions learned Counsel placed
reliance on the following authorities :-
(a) Premier Automobiles Employees' Union and
others v. Premier Automobiles Ltd. and
others [1987 (55) F.L.R. 46].
(b) Oswal Petrochemicals v. Government of
Maharashtra and others [1997 II CLR 472].
(c) Ramdeobaba Kamla Nehru Abhiyantriki
Mahavidyalaya, Nagpur v. State of Maharashtra
and others [2010 III CLR 39].
Based on the above Judgments learned Counsel for
petitioners submitted that respondents have not adhered to the
terms and conditions of Settlement and petitioners ought to
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have been granted ex gratia benefits as per their entitlement
under the Settlement.
14] Per contra, learned Counsel for respondent nos.1 and 2
submitted that Settlement between respondent nos.2 and 3
was executed on 11-12-1995. The said Settlement has not been
challenged by the complainants. The learned Counsel submits
that Settlement between respondent nos. 2 and 3 is binding on
complainants and as the recognized Union has accepted the
benefits under the Voluntary Retirement Scheme, complainants
cannot claim monetary benefits contrary to the terms and
conditions of Settlement dated 11-12-1995.
15] Another submission on behalf of respondents is that as
per the said agreement complainants were not entitled to get
basic wage more than Rs.350/- and they were given ex gratia
amount in view of the terms and conditions of the agreement
treating their basic wage as Rs.350/- under the Voluntary
Retirement Scheme. The submission is that complainants have
accepted the benefits without any protest and cannot be
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allowed to raise the issue of ex gratia payment as alleged in the
complaint.
16] So far as the reduction of production is concerned,
learned Counsel for respondents pointed out that complainants
were responsible for less production still benefits under the
Voluntary Retirement Scheme were extended to them as were
to be extended to the piece rated employees. In sum and
substance submission is that no breach of any of the terms or
conditions of the Settlement entered into between the parties
had taken place and the Industrial Court has rightly dismissed
the complaint.
17] Regarding the binding effect of terms and conditions
of Settlement between respondent nos. 2 and 3 the learned
Counsel placed reliance on the decision of the Hon'ble
Supreme Court in Shivanand Gaurishankar Baswanti v.
Laxmi Vishnu Textile Mills and others [(2008) 13 SCC 323]
and regarding binding effect of the terms of Voluntary
Retirement Scheme reliance is placed on the decisions of the
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Hon'ble Supreme Court in A.K. Bindal and another v. Union
of India and others [(2003) 5 SCC 163] refers in
Hec Voluntary Retd. Employees Welfare Society and
another v. Heavy Engineering Corpn. Ltd. and others
[(2006) 3 SCC 708].
18] Having heard the learned Counsel for the parties at length
and upon considering the reasons recorded by the Industrial
Court this Court for the below mentioned reasons finds that
petitioners have not made out a case for interference in writ
jurisdiction.
19] It is not in dispute that complainants were working in
Weaving Department of respondent no.2-Kalmeshwar Textile
Mills. Though in the petition petitioners have stated that they
were getting fixed wages, there is no whisper in the complaint
or in the evidence that they were getting fixed wages. On the
contrary pleadings raised in the complaint and evidence
adduced by complainants clearly indicate that they were the
piece rated employees. It is also not in dispute that on
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11-12-1995 Settlement was entered into between respondent
nos.2 and 3. As per the terms and conditions of the said
Settlement piece rate wages of employees for 26 working days
came to be fixed as under :-
"Weaving Department (Piece Rates)
Loom widthwise Auto weavers' Basic Piece Rate
per 10 meters of cloth-
Loom Width Rate (Paise/10 Minimum
mtr) Expected
Efficiency
120 Cm/48" 8.24 80.00%
150 Cm/60" 12.2o 77.00%
180 Cm/70" 16.3o 74.00%
220 Cm/86" 23.8o 71.00%
260 Cm/102" 32.oo 68.00%
From the above calculations it is apparent that piece
rate wages of the complainants were fixed on the basis of
production. It is not the case of complainants that they were
paid less wages than agreed between the recognized Union
and Management.
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20] The grievance is regarding payment of ex gratia and
monetary benefits as per Voluntary Retirement Scheme.
Needless to state that law is well settled regarding the binding
force of the agreement entered into inter se between
respondent nos. 2 and 3. Even if complainants were not parties
Settlement entered into between respondent nos.2 and 3 is
binding on the complainants. From the terms and conditions of
Settlement (Exhibit-94) complainants could not demonstrate
that their basic was more than Rs.350/-. In this connection note
under the head 'basis for calculation' is important and the same
is reproduced as follows :-
"NOTE :
If a worker has completed more than six (6)
months in a year, it will be considered as full year. If
the basic salary is less than Rs.350/- in that case for
the purpose of calculation the minimum basic salary
of Rs.350/- (Rs. Three Hundred & Fifty only) will be
considered. The Operatives, Clerk, Technical &
Supervisory staff & Officers who are not being paid
House Rent Allowance since they are residing in Mills
Quarters, while calculating their Ex-gratia amount of
House Rent Allowance payable on last salary drawn
will be considered."
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21] The close reading of the said note makes it clear that if
basic salary is less than Rs.350 in that case for the purpose of
calculation the minimum basic salary of Rs.350/- was to be
considered. The complainants do not dispute that they were
paid ex gratia based on the minimum basic salary of Rs.350/-.
In this situation, this Court finds substance in the submission of
learned Counsel for respondent nos.1 and 2 that though
complainants were entitled to actual wages on lower side they
got the benefits of minimum basic of Rs.350/-.
22] The complainants have accepted monetary benefits
without any protest. The learned Counsel for petitioners
submitted that representations were made from time to time
and complainants have protested the calculations on lower side.
The evidence of complainants' witness to this effect is
otherwise. The evidence of the witness examined on behalf of
complainants shows that they have been paid monetary
benefits under the Voluntary Retirement Scheme on the basis
of their piece rate wages as per the Agreements of 1995 and
2002.
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23] In the above premise nothing more is required to hold
that petitioners have failed to make out an arguable case. Writ
Petition deserves to be dismissed. Hence the following order :-
O r d e r
(i) Writ Petition No.579 of 2016 stands dismissed.
(ii) Rule is discharged. No costs.
JUDGE
Deshmukh
