Louis Dsouza And 11 Ors vs Hotel Kings Palace Saithirth ...
2023 Latest Caselaw 4890 Bom

2023:BHC-OS:4319

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION

                                       WRIT PETITION NO.2949 OF 2022

             Louis D'Souza and Others                                   ...Petitioners
                   vs.
             Hotel King's Palace and Another                            ...Respondents

             Mr. R.S. Upadhyay, for the Petitioners.
             Mr. Kiran Bapat, Senior Advocate a/w. Mr. Gaurav Gawande i/b. Mr.
             Avinash Fatangare, for the Respondents.

                                           CORAM :        N. J. JAMADAR, J.
                                       RESERVED ON :      APRIL 03, 2023
                                       PRONOUNCED ON :    JUNE 5, 2023

             JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the

parties, heard finally at the stage of admission.

2. The challenge in this petition is to a judgment and order dated

10th December, 2021 passed by the learned Member, Industrial

Court at Mumbai in Complaint (ULP) No. 226 of 2016 whereby the

complaint preferred by the petitioners/complainants alleging unfair

labour practices under Item 1(a) of Schedule II and Items 9 and 10

of Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (the Act, 1971)

came to be dismissed.

             Vishal Parekar                                                                     ...1





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3.      Respondent No. 1 is           a company incorporated under the

Companies Act, 1956. It is engaged in hotel and hospitality

business. Respondent No. 2 is the Director of respondent No. 1. The

petitioners were in the employment of respondents holding

different positions, for a number of years.

4. The petitioners alleged that as the the respondents were not

providing the wages and benefits as per the entitlement of the

petitioners, the petitioners joined Bharat Karmachari Union, a

registered trade union ("the union"). An intimation was sent to the

respondents by the said union on 19 th October, 2015 about the

petitioners having joined the said union. A charter of demand on

behalf of the petitioners was sent to the respondent No. 1 on 3 rd

November, 2015.

5. The respondents refused to consider the charter of demands.

Instead, the respondents threatened to close down the

establishment if the petitioners did not tender resignation of the

membership of the union. On 10th December, 2015 a meeting was

held between the respondent No. 2 and the representative of the

employees. In the said meeting, respondent No. 2 assured not to

terminate any of the employees. Minutes of meeting were recorded.

Vishal Parekar                                                                        ...2





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6. In breach of the settlement arrived at between the parties,

according to the petitioners, the respondent No. 2 coerced the

individual employees to put signature on blank papers and accept

the cheques for the varying amounts, without disclosing the

computation and the purpose for which those cheques were issued.

The respondents closed the establishment on 1 st January, 2016 and

restrained the petitioners from entering into the hotel premises.

The petitioners were made to visit Shri T.J. Setpal, the labour law

consultant of the respondents, and accept the certificates of

experience wherein it was mentioned that the services of the

petitioners were terminated for joining Bharat Karmachari Union.

Thus, the petitioners filed a complaint alleging unfair labour

practices under Item 1(a) of Schedule II and Items 9 and 10 of

Schedule IV of the Act, 1971.

7. The respondents resisted the complaint. It was contended

that the Industrial Court had no jurisdiction to entertain the

complaint as the alleged unfair labour practice was of termination

of the services of the petitioners, which would fall within the

exclusive jurisdiction of the labour Court. Tenability of the

complaint was also assailed on the ground that the petitioners have

not disclosed the exact date of the alleged unfair labour practice

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indulged in by the respondents and therefore the complaint was

barred by limitation. On merits, the respondents contended that all

the petitioners had accepted the compensation pursuant to the

settlement arrived at between the parties, voluntarily. The

petitioners and respondents had mutually and amicably settled the

entire dispute and pursuant thereto, the petitioners had resigned

and accepted various amounts in full and final settlement of their

claims. It was stated that the said agreement amounted to

settlement within the meaning of section 2(p) of the Industrial

Disputes Act, 1947. In substance, according to the respondents, the

acts and conduct attributed to the respondents did not amount to

unfair labour practice either under Item 1(a) of Schedule II or

Items 9 and 10 of Schedule IV of the Act, 1971.

8. The learned Member, Industrial Court after appraisal of the

pleadings and evidence adduced by the parties was persuaded to

hold that the Industrial Court had no jurisdiction to entertain, try

and decide the complaint and also that the complainant failed to

establish that the respondents indulged in unfair labour practices

under Item 1(a) of Schedule II and Items 9 and 10 of Schedule IV of

the Act, 1971. The learned Member was of the view that the

petitioners had accepted the various amounts voluntarily pursuant

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to the settlement arrived at between the parties and, without

bringing back the said amount, the petitioners were not entitled to

agitate the grievance of unfair labour practice, and that the

petitioners failed to establish that they were victimized for joining

the union.

9. Being aggrieved, the petitioners have preferred this petition.

10. I have heard Mr. R.S. Upadhyay, the learned counsel for the

petitioners, and Mr. Kiran Bapat, learned senior advocate for the

respondents at some length. With the assistance of the learned

counsel for the parties, I have also perused the material on record.

11. Mr. Upadhyay, the learned counsel for the petitioners

submitted that the finding recorded by the learned Member,

Industrial Court that the petitioners' services were not terminated

for joining the union is against the weight of the record. Mr.

Upadhyay would urge that not only there is a clear and unequivocal

admission in the certificates issued by T.J. Setpal, the labour law

consultant of the respondents, that the services of the petitioners

were terminated for joining the union but respondent No. 2 also

conceded in the cross examination in clear and unequivocal terms

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that the employees were removed as they jointed the union. In the

face of such material, the learned Member, Industrial Court could

not have held that the petitioners' services were not terminated for

joining the union.

12. Mr. Upadhyay would further urge that the learned Member

was not justified in discarding of the minutes of meeting dated 10 th

December, 2015 (Exhibit C) which recorded a settlement between

the parties that the owner would not terminate any of the

employees. The learned Member, Industrial Court, according to Mr.

Upadhyay, failed to appreciate that the violation of the statutory

provision itself constitutes an unfair labour practice. As the

respondents did not dispute that the petitioners were not allowed to

join their services, a clear case of unfair labour practice was made

out, urged Mr. Upadhyay. A grievance was made that the learned

Member, Industrial Court did not consider the binding precedents of

this Court in arriving at an erroneous conclusion that there was no

unfair labour practice under Item 1(a) of Schedule II and Items 9

and 10 of Schedule IV of the Act, 1971.

13. To bolster up the aforesaid submissions, Mr. Upadhyay placed

reliance on the judgments in the cases of:

Vishal Parekar                                                                  ...6





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1} Association of Engineering Workers, Mumbai vs. A.T.V. Ltd.

Mumbai and Anr.1.

2} Ibrahim Hanif Mulani vs. General Manager, Walchandnagar

Industries Ltd. Satara and Anr.2

3} Supriya Suresh Ghugre, (Mrs.) vs. R.U. Ingule, Hon'ble Member,

Industrial Court, Mumbai and Anr.3

4} Dilip Trading Company vs. Vasant Balu Patil4

5} Doodh Kamgar Sabha vs. Zurisingh Beechusingh & Co., & Anr. 5

6} D.G.P. Windsor (India) Ltd. vs. Pradeep Shivram Thakurdesai

and Ors.6

7} R.K. Shinde and Ors. vs. Shekoba Auto Pvt. Ltd. And Anr.7

8} Abhimanyu Dattaram Sawant and Ors. vs. Rauko Cine

Laboratories and Ors.8

9} Thomson Press Kamgar Sanghatana vs. Thomson Press (India)

Ltd. And Anr.9

10} Mahavir Steel Industries (P) Ltd., Pune vs. Pune Workers

Union, Pune and Anr.10

1 2002 II CLR 387.

2    2002 II CLR 395.
3    CLR III 2002 82.
4    2002 III CLR 597.
5    2004 III CLR 106.
6    2006 II CLR 835.
7    2008 I CLR 996.
8    2008 I CLR 488.
9    2011 I CLR 387.
10   2011 II CLR 929.

Vishal Parekar                                                                ...7





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14. Mr. Bapat, learned senior advocate for the respondents

countered the submissions on behalf of the petitioners. Mr. Bapat

would urge that the learned Member, Industrial Court committed no

error in dismissing the complaint. It was submitted that the fact

that each of the petitioners had accepted a sumptuous amount as

and by way of cessation of the employee-employer relationship

could not be disputed. The said agreement pursuant to which the

employees accepted various amounts and tendered resignation

constitutes a settlement under section 2(p) of the Industrial

Disputes Act, 1947.

15. Taking the Court through the deposition of Mr.

Ravindrakumar Kamlakant Mishra (UW-1), Mr. Bapat would urge

that the fact that the petitioners had accepted various amounts and

had not returned the same is rather incontestible. If at all the

petitioners wanted to raise grievance of unfair labour practice after

having voluntarily accepted the sumptuous amounts, it was

incumbent upon the petitioners to return the said amount. The

prosecution of the complaint of unfair labour practice while

retaining the cessation compensation is legally impermissible,

urged Mr. Bapat.

Vishal Parekar                                                                              ...8





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16. A strong reliance was placed by Mr. Bapat on a judgment of

the Supreme Court in the case of Man Singh vs. Maruti Suzuki India

Limited and Another11 wherein, after adverting to the previous

pronouncement in the case of Ramesh Chandra Sankla vs. Vikram

Cement12, the Supreme Court held that where the allegation was

that the employee was made to take voluntary retirement under

duress and, in reality, his removal from service was illegal and,

unjustified, it was incumbent on such employee to return the

amount which was received under the VRS Scheme and the

complaint cannot be proceeded with until the said deposit was

made.

17. Mr. Bapat, would further urge that from the very intrinsic

evidence of the alleged minutes of the meeting (U-20), it becomes

abundantly clear that the said document does not command any

credence. The learned Member, Industrial Court, was, therefore,

within his rights in not giving weight to the said document (U-20).

To lend support to this submission, Mr. Bapat took the Court

through the cross examination of Mr. Badruddin Sikander Qureshi

(UW-2). Emphasis was laid on the fact that Mr. Qureshi (UW-2) also

conceded that he had also received a compensation of Rs. 10 lakhs

11 (2011) 14 Supreme Court Cases 662.

12 (2008) 14 SCC 58.

Vishal Parekar                                                                 ...9





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pursuant to the settlement arrived at between the employer and the

employees.

18. To begin with the aspect of jurisdiction. Under section 5 of the

Act, 1971 it is the duty of the Industrial Court to decide the

complaints relating to unfair labour practices except unfair labour

practices falling in Item 1 of Schedule IV of the Act, 1971. In turn it

is the duty of the Labour Court to decide complaints relating to

unfair labour practices described in Item 1 of the Schedule IV and

try offences punishable under the Act, 1971. A conjoint reading of

the section 5(d) and 7 of the Act, 1971 would make it abundantly

clear that if a complaint relating to unfair labout practice falls

within the ambit of Item 1 of Schedule IV, the Labour Court will

have exclusive jurisdiction and the Industrial Court would not have

jurisdiction to examine the unfair labour practice revolving around

termination of an employee.

19. In the instant case, the petitioners alleged unfair labour

practices under Item 1(a) of Schedule II and Items 9 and 10 of

Schedule IV of the Act, 1971 (which clearly fall within the

jurisdiction of a Industrial Court). Those items of unfair labour

practices read as under:-

Vishal Parekar                                                                     ...10





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                                        Schedule II

Unfair Labour Practices on the part of employers

1. To interfere with, restrain or coerce employees in the exercise of their right to organise, form, join or assist a trade union and t o engage in concerned activities for the purposes of collective bargaining or other mutual aid or protection, that is to say,-

(a) threatening employees with discharge or dismissal, if they join a union;

(b) threatening a lock-out or closure, if a union should be organised;

Schedule IV General Unfair Labour Practices on the part of employers ....

9] Failure to implement award, settlement or agreement.

10] To indulge in act of force or violence.

20. In the backdrop of the controversy, it would be contextually

relevant to extract the Item 1 of Schedule IV (within the province of

the authority of the Labour Court).

Schedule IV General Unfair Labour Practices on the part of employers

1] To discharge or dismiss employees -

(a) by way of victimization;

(b) not in good faith, but in the colourable exercise of the employer's rights.

(c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

                   (g) for misconduct of a minor or technical

Vishal Parekar                                                                          ...11





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character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.

21. The learned Member, Industrial Court was of the view that

the petitioners failed to establish that the unfair labour practice

attributed to the respondents fell within the ambit of Item 1 of

Schedule II. Whether this finding of learned Member is justifiable ?

22. From the appraisal of the material on record, it emerges that

the formation of the union and affiliation of the petitioners with the

union were rather incontrovertible. There is material to show that

an intimation was given by the union on 19 th October, 2015 to the

employer. The reply dated 30th November, 2015 addressed by Mr.

T.J. Setpal, labour law consultant, on behalf of the employer, in a

sense, seals the issue of said intimation.

23. By the said reply the union was called upon to furnish

concrete proof of all the employees of the respondents having been

registered as the members of the said union.

24. The petitioners have tendered documents in support of the

claim that a charter of demand was served on their behalf by the

union on the respondents on 3 rd November, 2015 and the

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respondents declined to consider the charter of demands. In fact

the services of charter of demand and refusal of the respondents to

accede to the charter of demands was not at all put in contest.

25. It is imperative to note that the aforesaid developments took

place less than a month prior to the alleged termination of the

petitioners for joining the union. It is in this context the allegations

of unfair labour practices were required to be appreciated.

26. Had it been a case of drawing inference as to whether the

employer indulged in unfair labour practices on the basis of the

facts, a little latitude could have been given to the appreciation of

the evidence by the learned Member, Industrial Court. However, the

fact that the petitioners' services were terminated for joining the

union was put in black and white. One of the certificates (in respect

of petitioner No. 1) is extracted below:-

TO WHOMSOEVER IT MAY CONCERN

This is to certify that Mr. Louis R. D'Souza was working in our establishment since the last 22 years in our unit at Kings Palace Hotel at Khar, Mumbai as a Steward in Room Service.

Since he had joined the union Bharat Karmachari Union, Santacruz, Mumbai 55. His services were terminated.

Vishal Parekar                                                                      ...13





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This certificate is given to him on his request.

Sd/-

T.J. Setpal Mumbai Dated 29/01/2016

27. The learned Member, Industrial Court discarded the

certificates issued by Mr. T.J. Setpal, the labour law consultant of

the respondents, on the ground that there was nothing on record to

show that the respondents had authorized Mr. T.J. Setpal to issue

those certificates. It was also observed that the complainants did

not examine Mr. T.J. Setpal in proof of the contents of these

certificates.

28. The learned Member, Industrial Court clearly misdirected

himself in appraising both the proof and the evidentiary value of

those certificates. It is pertinent to note that in the written

statement filed on behalf of the respondents, the averments in the

complaint as regards the issue of certificates by Mr. T.J. Setpal,

were not controverted. On the contrary, it was submitted that the

certificates issued by Mr. T.J. Setpal were self-explanatory and

required appropriate evidence. In the cross examination, Mr. T.B.

Mansinghani (UW-2) conceded that Mr. T.J. Setpal was his legal

advisor and the certificates were signed and issued by Mr. Setpal.

Vishal Parekar                                                                            ...14





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He blamed his memory to state as to whether he had instructed Mr.

Setpal to issue those certificates (U-2). In the absence of a clear and

categorical denial of the issue of certificates, the learned Member

could not have brushed aside the certificates on the ground that

those certificates were not proved in evidence.

29. There is another circumstance which establishes the real

cause of termination of the employees beyond the pale of

controversy. The respondent No. 2 Mr. T.B. Mansinghani (UW-2)

conceded in the cross examination in no uncertain terms that the

workers were removed as they joined the union.

30. The aforesaid material, in my view, leads to a legitimate

inference that the formation of union and the act of petitioners

joining the said union was the driving force for the resultant action.

It would be difficult to draw an inference that the aforesaid conduct

on the part of the respondents would not fall within the ambit of

Item 1 of Schedule II.

31. A useful reference in this context can be made to a judgment

of a learned single Judge of this Court in the case of Delux Theatres

Pvt. Ltd. vs. Bombay Labour Union13 wherein in somewhat similar 13 1991 SCC OnLine Bom 827.

Vishal Parekar                                                                  ...15





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fact situation this Court has held that it is trite knowledge that the

evidence as to unfair labour practice or victimisation is in most of

the cases inferential or circumstantial. An Industrial Court trying a

complaint of unfair labour practice, can hardly hope to get direct

evidence on the issue. It is the duty of the Industrial Court, to look

at the totality of the circumstances brought on record by the

evidence and raise probable inferences from the cumulative effect

of the evidence placed on record.

32. In the case at hand, as indicated above, there are direct

admissions documentary as well as evidentiary to the effect that

the services of the petitioners were terminated as they jointed the

union. Reliance placed by Mr. Upadhyay on the judgment of a

learned single Judge of this Court in the case of Dilip Trading

Company (supra) appears to be well founded. In the said case as

well, the services of the employee were terminated as the employee

had joined the union. The observations of the Court in paragraph 7

of the said judgment read as under:-

7] The facts and circumstances of the present case are very harsh and hard. The respondent employee joined another Union in April 1991 and this fact is borne out from the record. In the same month he had gone to his native place. He reported for work on 18.6.1991 and he was not allowed to step in the shop to join his duty. On the resumed date his Union wrote a letter to the company. The respondent employee approached the authority also. All these facts are borne out from the

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record. The unfair labour practice within the meaning of Item 1(a)(b) has to be inferred from the aforesaid circumstances which are present on record. ........ ....

33. In the backdrop of the aforesaid facts, I deem it unwarranted

to burden the judgment by referring to multiple authorities. There

is material on record which leads to an irresistible inference that

the petitioners' joining the union was the trigger for the resultant

action.

34. Mr. Bapat, learned senior advocate for the respondents urged

that the learned Member, Industrial Court has recorded a justifiable

finding based on appreciation evidence that each of the petitioners

had accepted a sumptuous amount and their claims were fully and

finally settled amicably and thus the petitioners are not, entitled to

agitate the grievance regarding alleged unfair practices until the

petitioners bring back the said amount.

35. The position in law is well recognized. In the case of Man

Singh (supra) on which reliance was placed by Mr. Bapat, in

somewhat identical fact-situation where the employee alleged that

retirement under VRS Scheme was brought about by duress, the

Supreme Court had upheld the order of the High Court directing the

petitioners to deposit the amount which was paid to him by the

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employer. The Supreme Court followed a previous pronouncement

in the case of Ramesh Chandra Sankla (supra) wherein the

following observations were made.

100] Even otherwise, according to the workmen, they were compelled to accept the amount and they received such amount under coercion and duress. In our considered opinion, they cannot retain the benefit if they want to prosecute Claim Petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of amount cannot be termed unjust, inequitable or improper. Hence, even if it is held that a `technical' contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a direction which is in consonance with the doctrine of equity. It has been rightly said that a person "who seeks equity must do equity". Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution.

101] For the foregoing reasons, in our opinion, the order passed by the Division Bench of the High Court deserves to be confirmed and is hereby confirmed. The payment which is required to be made as per the said order should be made by the applicants intending to prosecute their claims before the Labour Court, Mandsour. In view of the fact, however, that the said period is by now over, ends of justice would be served if we extend the time so as to enable the applicants to refund the amount. We, therefore, extend the time up to December 31, 2008 to make such payment. We may, however, clarify that Claim Petitions will not be proceeded with till such payment is made. If the payment is not made within the period stipulated above, the Claim Petitions of those applicants will automatically stand dismissed. The Labour Court will take up the claim petitions after 31-12-2008".

Vishal Parekar                                                                      ...18





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36. In the case at hand, none of the petitioners have either repaid

the amount to the respondents or volunteered to deposit the

amount with the Court. The question that comes to the fore is

whether the complainants could be non-suited on the said count

without providing an opportunity to bring back the amount which

they have received.

37. In the totality of the circumstances, in my view, the

complainants deserve an opportunity to agitate the grievance that

the respondents indulged in unfair labour practices by coercing

them to accept the amount and tender resignation, after they had

put in a number of years of service, for the reason that they had

jointed the union, after depositing the amount which they had

received from the respondents, if they choose to do so. I am

persuaded to take this view for the reason that the evidence on

record, as noted above, leads to an irresistible inference that the

employer took umbrage to the petitioners joining the union.

38. The question as to whether the alleged settlement arrived at

between the employer and the employees under which the

employees allegedly voluntarily accepted the severance of

relationship upon payment of a particular amount, totally

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unconnected with the said activity of union formation, and the

severance of the employer-employee relationship was not brought

about by the act of force or victimization for joining the union are

the matters for adjudication. If the Industrial Court comes to the

conclusion that de hors the apparent termination of the services for

joining the union, there was a voluntary settlement between the

petitioners and the employer, a finding may be recorded that there

was no unfair labour practice as alleged.

39. For the foregoing reasons, the impugned order is required to

be quashed and set aside and the Complaint (ULP) No. 226 of 2016

remitted to the learned Member, Industrial Court for a fresh

decision after providing an effective opportunity of hearing to the

parties, if the complainants or any of them deposit the amount

which was paid to them by the employer at the time of alleged illegal

termination within a period of two months from today.

Hence, the following order.

ORDER

1] The petition stands partly allowed.

2] The impugned order stands quashed and set aside.

3] The complaint (ULP) No. 226 of 2016 stands restored to the file

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of learned Member, Industrial Court at Mumbai.

4] Whosoever of the petitioners/ complainants, desire to prosecute

the complaint shall deposit the amount which was paid to them at

the time of alleged termination by the respondent employer, in the

Industrial Court, within a period of two months from today.

5] The complaint shall proceed qua those complainants only who

deposit the amount and would stand dismissed qua those

complainants who fail to deposit the amount within the said period.

6] If none of the complainants deposit the amount within the said

period, the complaint would stand dismissed in its entirety at the

expiry of the said period.

7] In the event of deposit by all or any of the complainants, the

learned Member, Industrial Court shall adjudicate the complaint

afresh in accordance with law after providing an effective

opportunity of hearing to the parties, including liberty to adduce

further evidence, if the parties choose to, as expeditiously as

possible.

8] Rule made absolute in the aforesaid terms.

                                       (N. J. JAMADAR, J.)




Vishal Parekar                                                                ...21