Bombay High Court
Hindustan Lever Employees Union vs Hindustan Unilever Ltd on 24 February, 2018
Bench: A. K. Menon
hcs
wp11595.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8122 OF 2016
Hindustan Lever Employees Union .. Petitioner.
Vs.
Hindustan Unilever Limited .. Respondent.
WITH
WRIT PETITION NO.11595 OF 2016
Hindustan Unilever Limited .. Petitioner
Vs.
Hindustan Lever Employees Union .. Respondent.
Mr. Sanjay Singhvi, Senior Advocate i/b Mr.Bennet D'Costa for the petitioner
in WP No.8122/2016 and for the respondent in WP No.11595/2016.
Mr. K. M. Naik, Senior Advocate with Mr.R.M. Shah, Mr.S.P. Solkar i/b
M/s.Haresh Mehta and Co. for the petitioner in WP No.11595/2016 and for
the respondent in WP No.8122/2016.
CORAM : A.K. MENON, J.
RESERVED ON : 20TH DECEMBER, 2017
PRONOUNCED ON : 24TH FEBRUARY, 2018
JUDGMENT :
1. Rule. Rule returnable forthwith. By consent of parties taken up for
final hearing. Respondents waive service.
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2. By this common order the above two writ petitions are being disposed
of pursuant to the order dated 12th December, 2017 whereby both
parties agreed that the two petitions can be disposed of finally at the
stage of admission. The first petition is filed by the Employees' Union
and the second by the company.
3. It would be appropriate to set out few basic facts which are
undisputed. The company is engaged in the business of
manufacturing and marketing of soaps, detergent, cosmetics, personal
care and various other products at its factories across the country. It
is believed to have 40 factories and establishments and one such
factory is at Amli in Dadra and Nagar Haveli (Union Territory). The
union represents some workers employed at Amli factory.
4. In the Union's petition, it is contended that majority of the workers
of Amli CLS Plant and Liquid Bleach Plant of the company, who are
covered by the settlement dated 30th September, 2008 ("Amli
Settlement") became members of the petitioner-union on or about
2nd October, 2012. On 21st October, 2012 a meeting of the
managing committee of the union is said to have been held and the
company was informed of this fact vide letter dated 29th October,
2012. The union is said to have terminated the Amli Settlement on
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16th November, 2012 vide letter dated 10th November, 2012.
According to Mr. Singhvi the learned Senior Counsel for the union,
upon coming to know that the workers covered by the Amli
Settlement had joined the petitioner-union, the company hurriedly
signed a settlement with 9 workers working in the tea plant on 12th
November, 2012 which was a holiday. The Amli HPC factory plant
has since been integrated with three other factories, namely, Athal
Beverages and Sayli Beverages both located at Silvassa, and Daman
Unit-II. The petitioner has set out particulars of the dates of
settlement governing the workers at these four plants. Athal
Beverages and Sayli Beverages were manufacturing tea and Daman
Unit-II manufactures disinfectant and liquid bleach. It is contended
that on relocation of Athal Beverages, Sayli Beverages and Daman
Unit-II to Amli factory, the company signed a Bridge settlement with
the workers.
5. It is Mr. Singhvi's case that the settlement dated 12th November, 2012
is not binding on the workers covered by Amli Settlement since they
had already become members of the petitioner-union on 2nd October,
2012 and the company's management and the Labour Enforcement
Officer/Conciliation Officer were informed about the same. The
members of the petitioner-union were not part of the in respect of the
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alleged Settlement dated 12th November, 2012 ("November
Settlement"). It is contended that for various reasons as set out in
paragraph 9 of the petition, the November Settlement was not
binding as it was entered into without informing all the workers.
The Conciliation Officer had also failed to inform the Union of the
conciliation proceedings which were called on 12th December, 2012.
Undue haste is alleged. It is contended that the November Settlement
does not amount to a settlement since the conciliation proceedings
failed to conform to the provisions of the Industrial Disputes Act
("Act") including giving notices to the workmen. It is alleged that the
November Settlement is unfair since the notices of conciliation
proceedings were not given to the petitioner-union. It was contended
that on 29th October, 2012 the union had also informed the
company that 11 workers working in CLS Plant have withdrawn as
authorised representatives for negotiations and the management was
made aware of the same. Vide another letter dated 5th November,
2012, the Union also informed the company that any settlement
with other plant workers will not be binding on the workers of the
petitioner-union. The petitioner enclosed therewith a letter dated 4th
November, 2012 signed by 166 workers of the CLS plant informing
the company that they have joined the petitioner-union and all
negotiations should be held with the elected representatives of the
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petitioner-union.
6. Mr. Singhvi, learned Senior Counsel submitted that the November
Settlement deprives the workers of the benefit of the earlier
settlement and a demand was raised to the effect that the November
Settlement should not be treated as a settlement under Section 18(3) of
the Act. On behalf of the union Mr. Singhvi relied upon the following
judgments :
(i) Hotel Imperial Vs. Hotel Workers Union (1960) 1 SCR 476;
(ii) Lokmat Newspapers Pvt. Ltd. Vs. Shakarprasad (1999) 6 SCC 275;
(iii) Grindwell Norton Ltd. & Grindwell Norton Workers Union 1987
(54) FLR 727 SC;
(iv) Employees of Engg. India Vs. Engg. India Ltd. 1986 (52) FLR 537
SC
(v) C.T.R. Trade Union Vs. C.T.R. Mfg. Industries 1993 (III) LLJ 952
(Bom.HC);
(vi) Dena Bank Vs. D.V. Kundadia (2011) 15 SCC 690;
(vii) Bennett Coleman & Co. Ltd. & Anr. Vs. Narayan Atmaram Sawant
& Ors. 2002 II CLR 335;
7. The Union alleged that the process followed was contrary to Sections
12 and 18 of the Act. The Conciliation Officer's conduct in having
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completed the process of settlement in a single day is sought to be
questioned as having fallen foul of Section 12(2) and 12(3) of the
Act. Thus, the petitioner has contended that the November Settlement
is illegal, void ab initio. That apart, such settlement is prohibited by
the 5th Schedule of the Act. The settlement is also questioned on the
basis that it has deliberately not granted uniform increase in wages
to all the workers of the factory, especially since the petitioner's
believe the contribution of the workers at CLS plant is far higher than
the contribution of the workers at the tea plant.
8. On 11th June, 2013 the Appropriate Government made a reference of
the Charter of demands of the union of HPC Silvassa factory, CLS and
Domex unit at village Amli to the Industrial Tribunal. The order of
reference is annexed to the petition at Exhibit-E. A Statement of
Claim was filed on 31st July, 2013. The Union also filed an
application for interim relief seeking payment of Rs.8,500/- per month
from October 2012. A reply came to be filed and certain preliminary
issues were raised vide application dated 20th April, 2016 which
according to Mr. Singhvi was intended to prevent the workmen from
getting any interim relief and frustrating the workmen's demand. The
company filed an application and called upon the Industrial Tribunal
to decide upon maintainability of the reference as a preliminary issue.
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On 10th June, 2015, the Tribunal passed an order. The order dated
10th June, 2015 observed that since there was challenge to
November Settlement and as per Section 18(3)(a) of the Act, the
settlement would be binding on all parties, the question of whether or
not the November Settlement is binding on all members of the union
would require a detailed inquiry into issues. Accordingly, it was held
that the application for interim relief be heard along with Exhibit-35
viz. the application raising preliminary issue. The parties were given
liberty to lead evidence, if they so desired. This order is being
challenged in the Union's petition.
9. The company contended that while the union had raised a general
demand, the November Settlement is invalid. The company contended
that the petitioner-union had no locus to represent the employees of
the company. In its reply, the company contended that the union has
a registered address in Mumbai and that it can operate in the
company at its Head Office and branches anywhere in India.
According to the company, the HPC Silvassa factory at Amli is not a
branch but an independent factory, and the petitioner - Union has no
locus or legal right to represent it. Furthermore, it was contended that
the constitution of the union does not permit admission of the
employees of Amli plant. It is contended that as against work force of
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535 permanent workers employed at Amli unit only 30 workers
were a part of the petitioner-union and have signed the November
Settlement. 4 workers have since resigned and strength of the union
could not be more than 134. 75.41% of the workers had signed the
November Settlement, clearly a majority. It is further contended that
the Amli union has witnessed a merger of three unions which were
initially governed by separate settlements and upon merger, the
aforesaid bridge settlement was signed which was due to expire on
30th September, 2012.
10.The company contended that a single settlement was signed with the
workers of Amli unit after consolidation of the workers at Athal
Beverages, Sayli Beverages and Daman Unit-II. The settlement was
signed with intervention of the Conciliation Officer as aforesaid. The
Amli unit stands as a single unit and no segregation is possible. After
the November Settlement was signed, a corrigendum came to be
signed with certain modifications to the settlement on 19th November,
2013 whereby 23 authorised representatives of the workers accepted
the settlement as a whole by affixing their signatures and Amli unit
being situated in Union Territory, there was no question of there
being any recognised union and that company was at liberty to sign
the settlement with any of the unions representing permanent
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workers. If the other unions or workers challenged the settlement,
the demand would not constitute an industrial dispute under Section
2(k) of the Act, on the basis that an individual dispute cannot become
Industrial Dispute. The maintainability of the reference was thus
questioned on the basis that there were two disputes, one being the
Charter of demands dated 10th November, 2012 and secondly, the
challenge to the November Settlement.
11.With regard to the November Settlement, it is contended that its
validity is required to be decided first inasmuch as, if it is concluded
that the settlement was legal, the reference would not survive.
Therefore, it was necessary to decide the maintainability of the
reference before taking up the application for interim relief. It was
contended that since the aforesaid issues go to the root of
jurisdiction and maintainability of the reference, the reference could
not be entertained. The Tribunal was called upon to decide the
maintainability as a preliminary issue as also whether the union
has locus to represent the employees.
12.During pendency of the application for granting interim relief, the
union filed a further application on 8th July, 2015 seeking ad-
interim relief by way of directions to the company to grant benefits of
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the November Settlement to the workers covered by the reference. It
was contended that pursuant to the Charter of demands for the year
2013, the interim relief application was filed on 31st July, 2013. The
November Settlement was for a period of four years of which three
years had lapsed. Therefore it was urged that the ad-interim relief
was required to be granted.
13.The application was opposed by the company which in its affidavit in
reply dated 7th March, 2017 contended that while the interim relief
application seeks payment of Rs.8,500 per month with effect from 1st
October, 2012, the company had filed an application (Exhibit-35)
raising a preliminary issue. The company contended that the
application for ad-interim relief was filed with ulterior motive and
to prejudice the minds of workers secure reliefs which were subject
matter of proceedings in which the order dated 10th June, 2015
had been passed. The union had not challenged the order in
Exhibit-35 at the material time and the Union's petition is filed after
more than 10 months of passing the order and no convincing reasons
have been given for the delay. Inspite of the order dated 10th June,
2015 granting leave to lead evidence, no evidence had been led at the
material time, yet the Union made an application for ad-interim relief.
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14.It is contended by Mr.Naik, learned Senior Counsel on behalf of the
company that the petitioner union had not complied with the
directions in the order dated 10th June, 2015 and the application for
ad-interim relief was only a method of sabotaging due process. The
Tribunal vide its ad-interim order dated 25th February, 2016 directed
the company to pay benefits under the November Settlement to the
members of the petitioner-union.
15.The company being aggrieved by the order of the Industrial Tribunal
dated 25th February, 2016 filed the companion Writ Petition
No.11595 of 2016. Mr.Naik submitted that the Union has not given
any reason as to why its writ petition was not filed for 10 months. It
is contended that the petitioner-Union had tried to surpass the
judicial process by filing an application for ad-interim relief. It is
further contended that the petition of Union does not survive as the
Union had since filed an affidavit in lieu of examination in chief, and
the trial has begun. In the reply, the company denied that the
November Settlement was signed hurriedly. It has reiterated that it
was signed in conciliation, in consonance with Section 3 of the Act and
is therefore a valid and legal settlement with the elected
representatives of employees. On this basis, it is contended that the
union's petition has no merit especially since the contention of the
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union that the Tribunal had passed an order without hearing the
petitioner-union is baseless, for had it been so, the Union would have
challenged the order dated 10th June, 2015 promptly.
16.In Writ Petition No.11595 of 2016 the company has challenged the
order dated 25th February, 2016 by which the company was directed
to provide all the benefits of the November Settlement to the workmen,
who had filed the ad-interim application till adjudication of the
reference and the arrears from the date of implementation of
settlement were directed to be paid in three equal installments. It is
the company's case that almost 767 employees of the Amli factory had
signed the November Settlement. It was signed by 26 authorised
representatives in the General Body meeting held on 27th August,
2012. The newly elected authorised representatives are believed to
have been communicated in September 2012 along with the
resolution passed by the workmen. This led to a series of meetings
between the parties and with intervention of the Conciliation Officer
the settlement was signed. On 19th November, 2013 a corrigendum
was signed with certain modifications where 23 authorised
representatives of Amli union accepted the settlement as a whole by
affixing their signatures.
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17.Mr.Naik submitted that after hearing the parties the Industrial
Tribunal had passed an order dated 10th June, 2015 holding that the
application for the interim relief can be decided together with the
application framing preliminary issue. After the order was passed no
attempt was made to lead evidence but on 8th July, 2015 the
application for ad-interim was filed. Mr.Naik contended that the ad-
interim application amounts to abuse of process of the Court since in
the guise of application, the union was attempting to effectively
convince the tribunal to recall the order passed on 10th June, 2015.
Mr.Naik contended that there was no provision for grant of ad-
interim relief under the Act and the tribunal is required to pass an
order either interim or final as contemplated under Section 2(b) of
the Act. The validity of the settlement would have to be decided first
and if the tribunal came to the conclusion that the November
Settlement was valid, this would not survive. The ad-interim
application was assailed as an attempt to negate the effect of the order
dated 10th June, 2015 which was in force. It was contended that by
the impugned order dated 25th February, 2015, effectively the
Tribunal had ignored the fact of the order dated 10th June, 2015.
18.Mr.Naik submitted that the attempt was to create disharmony
amongst the employees whose elected representatives have signed
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the November Settlement. The impugned order would have the effect
of favouring the minority group of employees without there being
any obligation to do so and retrospectively from November 2012. No
circumstances have been made out warranting grant of ad-interim
relief. Mr.Naik submitted that the Union cannot approbate and
reprobate inasmuch as the November Settlement was final which was
challenged and pending that challenge, the Union could not have
sought benefit under that settlement.
19.On behalf of the company Mr.Naik relied upon the following
judgments :
(i) Peico Electronics & Electricals Ltd. Vs. Peico Employees Union &
Ors. (Civil Appeal No.2942 of 1995 dated 3rd May, 1995);
(ii) Goodlass Nerolac Paints Ltd. Vs. Paints Employees Union 2009 III
LLJ 703 (Bom.HC.);
(iii) Enercon (I) Ltd. Vs. Kishor B. Patel & Ors. 2013 II CLR 308;
(iv) V.V.F. Ltd & Ors. Vs. Sarva Shramik Sangh & Anr. 2006 III CLR
531;
(v) Goa MRF Employees Union Vs. MRF Ltd. Civil Appeal No.1007 of
2004;
(vi) Tata Consulting Engineers Associates Staff Union vs. Tata Sons Ltd.
& Anr. 2001 (90) FLR 1066 (Bom.HC);
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(vii) Steel Authority of India Ltd. Vs. Union of India & Ors. 2006 III LLJ
189;
20.Mr.Naik also invited my attention to pay slips for the month of March
2017 and August 2017 in respect of two employees, who had not
been given benefit of the November Settlement or settlement of 22nd
December, 2016. He also relied upon examination in chief recorded
on 15th February, 2017 and further examination in chief and cross
examination recorded on 15th April, 2017 and 14th June, 2017 in
support of his submissions that the Union had made out a case for
interference with the order dated 10th June, 2015.
21.In Hotel Imperial (Supra) the Supreme Court while considering the
dispute between three hotels and their workmen about conditions of
labour, had occasion to consider the scope of powers of the Industrial
Tribunal and in particular "an interim or final determination" of an
industrial dispute and observed that the Tribunal has to confine
adjudication to those points and matters incidental thereto. The
Supreme Court considered the arguments on behalf of the appellants
that the Tribunal was required to confine itself to adjudicating on the
points referred and that question of interim relief was not referred to,
the same could not be adjudicated upon. The Supreme Court
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observed that the word "incidental thereto' under Section 10(4) left
no doubt that interim relief, where it is admissible can be granted as a
matter incidental to the main question referred to the Tribunal without
a specific and express reference.
22.In the instant case, however, I find that the specific reference made is
pertaining to the applicability of the settlement and whether pending
the decision of the main reference, interim application being granted
was justified. The Court considered that the word "award" could
mean an interim or final award and if the Tribunal makes an award
pertaining to some matters leaving others to be decided at the later
stage, that would constitute an interim award, but these awards are
not in the nature of interim relief because the Court decided part of
the question in issue. Interim relief on the other hand is granted under
Section 10(4) of the Industrial Dispute Act, with respect to matters
which are incidental to the points of dispute under adjudication. I do
not see how this decision comes to the assistance of Mr. Singhvi.
23.Vide the impugned order, the Tribunal has effectively granted interim
relief, for an application seeking ad-interim relief. The situation is
unique inasmuch as an interim relief application dated 31 st July, 2013
in the form of Exhibit G was already pending before the Tribunal. It is
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described as "Application for interim relief / interim award". The
application has gone to great lengths in analysing the financial reports
of the company, setting out the settlement(s) which govern service
conditions in its various plants and highlighted the fact that the
November Settlement is not fair and proper since company has
deliberately not granted uniform increase in wages for all the workers
in the factory and that the workers covered by the Reference IDR No. 4
of 2013 were granted less wages than the workers in the tea plant.
24.Various decisions of the Supreme Court were referred to in support of
the contention that wage increase for workers will be justified, if the
paying capacity of the employer had increased, if there was increase
in the Consumer Price Index, if the wages of workers had not reached
living wage and if there has been a rise in the wage structure in a
comparable industry. The nature of the prayers in the interim
application were clearly for grant of interim relief which are
reproduced below :
"(i) Grant an interim relief of Rs.8,500/- per month to every
employee in the First Party Company w.e.f. 1 st October, 2012 and
to pay to the employees in the Assistant Technician and
Technician Grades along with arrears thereof.
(ii) Company shall give time off to two office bearers or
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committee members of the union to attend the disputes / matter
pending before any Authorities or Courts or Tribunals.
(iii) Pass such other order, direction or relief, this Hon'ble
Tribunal deems fit and proper.
25.On a fair reading of the above prayers it is evident that what the
employees union is seeking is an interim measure of payment of
Rs.8500/- per month effective from 1st October, 2012 and arrears. A
detailed reply has been filed to the interim order on or about 13 th
March, 2014. An application, Exhibit-35 was filed soon after the reply
was filed on or about 20 th April, 2015. Exhibit 35 was filed by the
company seeking a decision on maintainability of the reference as a
preliminary issue. According to the company the union raised general
demand vide letter dated 10th November, 2012 including one that the
November Settlement should not be treated as a settlement under
Section 18(3) under the Industrial Disputes Act. The Company
contended that the November Settlement was signed under Section
12(3) of the Act before the Conciliation Officer and the settlement will
be binding pursuant to section 18(3) of the Act. It was contended that
the reference was not maintainable since the jurisdiction of Court had
been questioned, it was not appropriate that the interim application
should be taken up.
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26.Parties were heard on this application and after hearing parties the
Tribunal concluded that Exhibit-35 could be decided along with
application for interim relief. Parties were at liberty to lead evidence, if
they so desired, in support of their contentions. This order was passed
on 10th June, 2015. On 8th July, 2015 the union filed an application at
Exhibit-G wherein a grievance was made that the application for
interim relief was filed on 31 st July, 2013 and although two years had
passed, hearing had not commenced. The Union adopted the
contentions in the statement of claim and interim relief application, as
if it was part of the application for ad-interim relief. It was contended
that even if the company succeeded in the application for interim
relief, the workman would be entitled to receive benefits. For almost
three years, the workmen had not got a revision in wages and serious
prejudice was being caused to them. Relief was sought by way of "ad-
interim arrangement" with the company and all benefits of November
Settlement were sought for the workmen under the reference who
would give productivity and other conditions without prejudice to the
rights and contention of the parties.
27.In the reply the company once again pointed out that preliminary
objection had been taken, that the issue was still at large and that no
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ad-interim relief should be granted. The Tribunal being a creature of
the Statute and there being no provision, the application for ad-interim
relief should not be entertained. At the material time no evidence was
led by the union which should either have led evidence or filed a
purshis declining the opportunity. The impugned order notices the
fact that on 10th June, 2015 the Tribunal had passed an order that the
interim relief application for deciding the issue on maintainability to
be decided together and the parties would be granted opportunity to
lead evidence. After dealing with the contention of the parties, the
Tribunal was of the view that there was no bar to accept certain terms
and conditions under protest. It referred to the three guiding
principles for granting ad-interim relief viz. prima facie case balance
of convenience and irreparable loss. It had proceeded to hold that the
failure of conciliation proceeding and disagreement on terms of
settlement is itself proof that there was a prima facie case. It then held
that the November Settlement affected some workers but the others
deferred with the proposal and the terms of the new/ settlement and
that the application seeking ad-interim relief was justified since the
balance of convenience lay in favour of the workmen seeking such
relief. It was contended that the members of the union were not
getting special concession. Reference is made to world economy and
the fact that inflation affects even these members of the union and that
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if relief is not granted "irreparable loss of good livelihood" of workers
and their families would be the result. At the same time the employees
who were accepting the November Settlement would enjoy all the
benefits. Interestingly in the operation portion of the order paragraph
2 reads as follows :
"The First party is directed to give all the benefits of the
settlement dated 12th November, 2012 to the workmen
concern of this reference till the adjudication of the reference
immediately."
28. The order grants interim relief because the
direction contained in clause (ii) is to provide all the benefits
of the November Settlement to the workman before the
Tribunal till "the adjudication of the reference immediately" .
(emphasis supplied). Thus effectively interim relief has been
granted on an application for ad-interim relief. The tribunal
seems to have lost sight of the fact that what the applicant's
had sought was ad-interim relief till the decision of the
interim application. The interim application and the objection
to its maintainability i.e. Exhibit-35 were still awaiting
consideration of the Tribunal. It was for the union to have
filed its evidence or conveyed its decision not to lead evidence
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before the Tribunal. The Union did neither at the time it is
another matter altogether that the company also did not lead
evidence at the material time.
29. Considering the fact that the impugned order virtually
granted interim relief in the face of jurisdictional issue being
raised, invocation of Writ jurisdiction of this Court in the
facts of the case is justified. Normally in any matter of an
interim order, interference in the Writ jurisdiction of this
Court is not encouraged, however the facts in the present case
are unique and to this extent it is useful to keep in mind the
decision of the Supreme Court in Tayabhai Bagasarwalla v/s
Hind Rubber Industries Pvt. Ltd. (1997) 2 SCC 443 which
reiterates that the correct approach would be to decide the
issue of jurisdiction at the earliest instance. Although that
view was expressed in relation to Section 9A of the Code of
Civil Procedure, in the instant case when the jurisdictional
issue has been raised the Tribunal must decide that issue
before embarking upon consideration of application for
interim relief. This fact has been noticed by the Tribunal
while passing order dated 10th June, 2015 and given the
nature of pleading in the interim application and the reply,
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the Tribunal thought it fit to permit the parties to lead
evidence in support of its contention giving much amount of
data in particular on the financial well being of the company
as against the reluctance to offer the same benefits of
November Settlement to the workers in question. In this view
of the matter it is difficult to understand the reasons for the
Tribunal having passed the impugned order.
30. The impugned order has virtually roughshod
over the objections of maintainability raised by the company.
The impugned order omits to consider the issue pertaining to
the maintainability of the interim application is left
undecided. Surely this was not the correct course that should
have been adopted by the Tribunal. It was open to the
Tribunal to expedite the hearing of the interim application, as
also the issue of maintainability clubbed therewith, however,
it chose not to do so.
31. There is substance in the argument on behalf of the
company on this aspect. I find that the order of the Industrial
Tribunal is susceptible to misuse as in the instant case where
the main reference remains pending along with the interim
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application and the objection of maintainability. In V. V. F.
Ltd & Ors. vs. Sarva Shramik Sangh & Anr (supra), while
considering the challenge to an interim order of the
Industrial Court. An order allowing benefits to certain group
of workmen who had not given up their rights to raise the
demand on par with other workman who had entered into a
settlement, after giving up their rights to raise demand
during the currency of the settlement, was frowned upon by a
Single Judge of this Court.
32. In my view it was necessary in the interest of judicial
discipline that the Industrial Tribunal refrained from passing
any order on the ad-interim application save and except for
its rejection. The application for interim reliefs could have
been taken up for hearing. The fact that the union's
complaint of the interim application being pending for over
two years and it used that period of delay as the reason for
seeking ad-interim order in the same terms as the interim
application met with the approval of the Industrial Tribunal.
The impugned order clearly overlooks the fact that the union
took no steps to comply with the order of 10 th June, 2015. It
did not indicate whether it wished to lead evidence nor did it
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file a closure purshis. Considering the conduct of the Union,
passing of the impugned order was clearly not justified. No
doubt the effect of the impugned order would be to provide
certain benefits of workmen who were agitating the validity
to the November Settlement. However, what they sought to
do and what they have almost achieved is to reap the benefits
of the November Settlement without having to accept the
obligation there under. The onerous parts of the settlement
are therefore sought to be avoided.
33. Moreover, the prayer in the application is to the effect
that the company should give all benefits of the November
Settlement to the workmen covered by the Reference.
Whereas the prayer in the ad-interim application is in two
parts namely seeking the benefits while offering to comply
with the other conditions in the settlement including higher
productivity, all of which is stated to be without prejudice.
The order itself omits to consider the obligation of the
workmen to perform in productivity terms and in relation to
the other conditions. The effect of the order is clear, all
benefits of the November Settlement should be given to the
union members immediately. Arrears are also required to be
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paid but in three installments but there is no direction
requiring the workmen to perform in terms of the settlement.
Thus workman are not obliged to meet the productivity levels
contemplated in the settlement or comply with the other
conditions, and that in my view is one more reason the
impugned order cannot be sustained.
34. In Lokmat Newspapers Pvt. Ltd (supra) Mr. Singhvi had
relied upon paragraph 49 wherein the Supreme Court
observed that when a reference is received, in appropriate
cases the Court has ample power and jurisdiction to pass
interim orders. In the present case reference had also been
made to case of Grindwell Norton (supra) in which the
Division Bench of this Court has held that interim relief
applications are not barred by principles of res judicata or
estoppel. While applying the ratio in Grindwell Norton
(supra) it was submitted by Mr. Singhvi that merely because
the application for interim relief was pending was no reason
to refuse relief in the application for ad-interim relief.
However, on facts of the case I find that this decision is of no
assistance to Mr. Singhvi since the question here is not merely
of maintainability of an application for interim relief but that
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of maintainability of an application for ad-interim reliefs
which relies entirely upon the averments in the application
for interim reliefs.
35. In the Employees of Engineering India Ltd (supra) Mr.
Singhvi, learned counsel has placed reliance upon the
observations of the Supreme Court in that case, directing all
employees of the public sector undertaking drawing a basic
pay of Rs.1000 or less will be entitled to interim relief on the
same basis and scale as the other Government of India
employees. This shall be on an undertaking given by each of
them that in case they fail in the claim made by them, they
will refund the excess amount drawn by them and arrears. In
my view, such an order will not be justified in the instant
case, at the interim stage since it will put undue pressure on
the employees. Moreover in the present case the Union had
not opted to lead evidence initially and the tribunal has not
yet had the opportunity to consider the merits of the case. Mr.
Singhvi had placed reliance in the case of Dena Bank (supra)
but that ruling was appropriate in the facts of that case but
it is not applicable to the facts at hand because in the present
case we are concerned with the ad-interim order being
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passed in terms of interim application without a full fledged
hearing of the interim application and without considering
the objection to maintainability. Mr. Singhvi placed reliance
on the case of Bennett Coleman & Co. Ltd.& Anr. (supra)
which also will be of no assistance to the Union in view of
the view I have taken herein.
36.As far as the judgment in the case of Peico Electronics (supra) relied
upon by Mr.Naik and in the case of Virudhachalam P. & Ors.
(supra), the Supreme Court held that the settlement arrived at during
conciliation proceedings between respondent no.1 Management and
the four out of five Unions of workmen on the other, had a binding
effect under Section 18(3) of the Act not only on the members of the
signatory unions but also on the remaining workmen who were
represented by the fifth Union, which had refused to sign the
settlement after having participated in conciliation proceedings, and
also that it was axiomatic that such settlement was binding even on
future workmen. In the instant case the Union has questioned the
company's contention that the settlement was one under Section 18(3).
37. In National Engineering Industries Ltd. (supra) the Supreme Court
was hearing the appeal against the judgment of Rajasthan High Court
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which held that a settlement arrived at Conciliation proceedings was
binding on the workmen. While dealing with provisions of Section
18(3) of the Act, the Court found that a settlement arrived at in the
course of conciliation with a recognised majority Union will be
binding on all workmen of the establishment, even those of a minority
Union or individual workmen, observing that there can be many
splinter groups each forming a separate trade union and if every
union having few members goes on raising a dispute, there will be
multiple disputes with the State Government making reference again
and again. The very purpose of settlement will be defeated. In the
facts of that case a notice came to be issued on the proceedings and
the reference was stayed on the grounds that there has been no
progress made thereafter and even otherwise it found futile to
allow the reference to continue after lapse of years. In the facts of the
present case the maintainability of the reference has been called into
question and a decision is yet been arrived at.
38. Mr.Naik has also referred to the decision of Goodlass Nerolac Paints
Ltd. (supra) in which the Supreme Court observed that the Industrial
Court could not have issued directions for extending the benefits of
the settlement to the other workers without they having signed the
settlement and since the settlement had a productivity clause and
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the workers of the complaint-union had not signed the settlement,
the Industrial Court was not justified in enforcement of the settlement
in favour of the complaint-Union. I am of the view that there was no
basis for imposing the terms of settlement on the company qua the
contesting Union. In the course of his submission In Tata Sons Ltd.
(supra) the Tribunal had considered the demands referred for
adjudication item-wise, recorded its reasons for not granting the
same in the context of settlements placed on record, had considered
overall comparable concerns of all demands and has given reasons
independently holding that the demands were not justified. The
Court found that the contention that the settlement cannot be
considered to be fair and proper merely because they were accepted
by majority, would not be accepted, and that the workmen who are
employed by the company are wise enough to have accepted the
benefits of the settlement considering all the facts. Quoting from
Peico Electronics the Court observed that the Will of the majority
workmen will have to be accepted by the petitioner Union and it
cannot persist to have independent and separate adjudication of its
own demands.
39. In Steel Authority of India, the observations that a definite stand
was taken by the employees that they had been working under the
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contractors and it would not be permissible for them to take a
contradictory and inconsistent plea that they were also the workmen
of the principal employer and it was impermissible in law to take a
mutually destructive plea. In the instant case that is precisely what is
sought to be done. In the course of proceedings before the Industrial
Court the witness on behalf of Union admitted during the cross
examination by the companies counsel that there were 535
workmen who participated in the election process and that limited
representatives were authorised to engage in settlement talks on
wage revision. Also in 2008 and 2012 also the settlement of wage
revision was allowed following the same procedure. The witness
further admitted that the settlement as arrived with the conciliation
officer and that a corrigendum had been arrived at. The witness
admitted that all 535 workmen participated in election process and
the representatives so elected. Although Mr. Singhvi objected to the
said evidence on the basis that it is hearsay. In National Textile
Corporation (supra) Mr.Naik has correctly placed reliance on the
observation that pleadings and particulars are necessary to enable
the Court to decide the rights of the parties.
40. In the instant case the ad-interim application was merely relying
upon averments in the interim application. In the interim application
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specific direction has been given to lead evidence and parties were
expected to do so or seek closure of evidence on the basis that they
would not lead oral evidence. This was not done at the material time
and in the circumstances there were no particulars available before
the Tribunal on the basis of which the ad-interim order could have
been passed. The approach of the Tribunal amounts to ad-hocism and
pending the decision on the main interim application the Tribunal
ought not to have proceeded to pass the impugned order as an adhoc
measure.
41. The other question that arises is whether under Section 10(4) of
the Act the grant of ad-interim relief could be described as a decision
of matter incidental thereto. Under Section 10(4) in the case of an
order referring an Industrial Dispute, the appropriate Government
specifies the points of dispute for adjudication and the Tribunal is
mandated to confine its adjudication only to those points so referred
and matters incidental thereto.
(emphasis supplied)
42. On plain reading it is obvious that "matters incidental thereto"
used for sub-section would only be a reference to the matters and
issues which are incidental to main points, more in the nature of
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corollaries or different branches of the point in dispute. To conclude
that power to grant the ad-interim relief is a matter incidental to the
points pending for adjudication in the interim relief application and
the application adjudicating to maintainability and jurisdiction of
the Tribunal is not in my view said to be matter incidental to points
referred. In this behalf it will be useful to refer to the decision of the
Supreme Court in the case of MRF Ltd. (supra) in which case, the
Court observed prima facie that they could not agree with the view
that the interim relief was granted in exercise of powers conferred
upon the Tribunal with respect to matters incidental to points of
dispute referred for adjudication, although the Supreme Court
thereafter left these matters to be decided by the larger bench, it
referred to the decision in Grindlays Bank, Lokmat Newspaper and
Delhi Cloth and General Mills Ltd. in that regard.
43. The ad-interim relief application relies upon the contents of the
interim relief application which is deemed to be part of the interim
relief application. No other reasons are given for seeking ad-interim
relief save and except pendency of the earlier application. Thus, the
question that arose for consideration is whether pending the disposal
of an application for interim relief and a decision on its
maintainability, whether a further application for ad-interim relief in
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the same terms is permissible.
44. In my view in the facts of the present case the answer must be in the
negative. The application for ad-interim relief does not set out any
new facts or new circumstances, it does not make out any new case. In
fact it relies entirely upon the substance of the application for interim
reliefs. The only reason given is that the application for interim relief
had not been decided. In my view, without alluding to any delay on
part of the Tribunal it is clear that the Union had thus shown no
inclination to proceed with the application for interim relief. It
appears that the union was seeking to take advantage of its own
wrong. Surely this ought not to have been permitted.
45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf
of the Union. On facts, the issues are largely dealt with in relation
to the company's writ petition. In the Union's petition, it is reiterated
that the "November Settlement" did not amount to settlement in
conciliation, that it was arrived at in undue haste to deprive the
union the benefits of being engaged in conciliation. The challenge in
the Union's petition is to the order dated 10th June, 2015. It is
contended that the petitioner had reserved its challenge to the order
dated 10th June, 2015 so that the application for ad-interim relief
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could be decided. It is submitted that the impugned order in the
Union's petition creates procedure for piece meal evidence and the
very same issue would be subject matter of the final award. Moreover,
neither of the parties before the Tribunal had sought to lead evidence
at the stage of challenge on the aspect of maintainability and on the
ground that the impugned order would result in repetitive evidence
being led and would unduly delay disposal of the interim application.
The submission on the subject matter of the settlement is similar to
those of the company. The essential contention is that the November
settlement does not amount of settlement under Section 12(3) and
18(3) and therefore would not apply. Secondly, it is void ab initio,
apart from being unfair to some workers.
46. The gravamen of the Union's grievance is that the contribution of
CLS plant to the produce of the company represented by the Union is
much more than worker of the tea plant and considering the fact that
after the last statement there has been mass erosion due to increase in
price index and inflation. The settlement does not therefore grant
workers the purchasing power similar to that of earlier settlement.
47. In reply filed on behalf of the company, it is pointed out that after
the order dated 10th June, 2015 was passed, the Union has not
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challenged the order for more than ten months and the interim
application was posted for leading evidence. The Union did not lead
any evidence nor did it close evidence but instead made the ad-
interim application. It is contended that the ad-interim application was
abuse of the process of the Court and the challenge in the present
petition is not bonafide. All other allegations are denied.
48. Having heard counsel on this aspect the record indicate that the
Union's petition is filed on 21st April, 2016 although interim order
was passed on 10th June, 2015. The only reason given for filing this
writ petition apparently is that the Union had "reserved" its challenge
to the order dated 10th June, 2015 in order to facilitate decision of the
ad-interim relief application. The ad-interim application was made
on 8th July, 2016, even after passing of the impugned order after the
period of 12 months. The ad-interim application itself was made
after a period almost a month, and since the ad-interim application
relies upon the contents of the interim application, it would only be
expected to have been challenged. Hence I pass the following order :
(a) The impugned order dated 25th February, 2016 passed by the
Industrial Tribunal on Exhibit-38 in IDR 4 of 2013 is hereby set aside.
(b) The Industrial Tribunal shall proceed to hear reference IDR No.4 of
2013 after deciding the application for interim relief being Exhibit-35
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as contemplated in the order dated 10th June, 2015.
(c) The recording of evidence, if any, as per order in Exhibit-35 to be
completed within a period of three months from today. Exhibit-35
shall be disposed of within a period of two months from completion of
recording of evidence.
(d) Writ Petition 8122 of 2016 does not call for any interference.
Accordingly the same is dismissed.
(e) Rule made absolute in the above terms.
(f) No order as to costs.
(A.K. MENON,J.)
