Bombay High Court
Godrej Industries Ltd vs Prakash T. Kadam on 23 November, 2017
Bench: R.M. Savant
1 / 37 APP-271-05.odt
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
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
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
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/
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
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
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.
15 / 37 APP-271-05.odt
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.
16 / 37 APP-271-05.odt
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
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
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
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
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
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
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."
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
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.
25 / 37 APP-271-05.odt
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,
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
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;
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
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
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-
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
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
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
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
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
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.)
37 / 37 APP-271-05.odt
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.)
