Santosh Keshvrao Shinde And Others vs Laxmi Riksha Auto Body Pvt Ltd. Throughj ...
2025 Latest Caselaw 1717 Bom

Bombay High Court

Santosh Keshvrao Shinde And Others vs Laxmi Riksha Auto Body Pvt Ltd. Throughj ... on 21 January, 2025

2025:BHC-AUG:2366




                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                              WRIT PETITION NO. 10712 OF 2022

           1] Santosh Keshavrao Shinde
             Age: 41 Years, Occu: Nil,
             R/o: R H-99/8, Indraprastha Colony,
             Bajaj Nagar, Waluj Aurangabad

           2] Kailas Ramrao Kadam
              Age: 44 Years, Occu: Nil,
              R/o: Plot No. 85, CIDCO, Mahanagar,
              Waluj Aurangabad

           3] Pandurang Rambhau Chavan
              Age: 43 Years, Occu: Nil,
              R/o: New Hanumannagar,
              Ranjangaon Shenpunji, Tq. Gangapur,
              Dist: Aurangabad

           4] Santosh Pundlik Najire
              Age: 48 Years, Occu: Nil,
              R/o: Hari Om Nagar,
              Ranjangaon Shenpunji, Tq. Gangapur,
              Dist: Aurangabad

           5] Dattatray Laxman Khoche
              Age: 43 Years, Occu: Nil,
              R/o: House No. RM-152/2,
              Chinchban Colony, Bajaj Nagar,
              Aurangabad Tq & Dist: Aurangabad

           6] Mohan Raibhan Sultane
              Age: 50 Years, Occu: Nil,
              R/o: Jijamata Nagar, Near CIDCO
              Garden, Tisgaon, Tq & Dist: Aurangabad

           7] Shankar Dhondiram Khoche
              Age: 47 Years, Occu: Nil,
              R/o: Jogeshwari, Post Waluj,
              Tq. Gangapur, Dist: Aurangabad

           8] Pandurang Ramdas Shinde
              Age: 42 Years, Occu: Nil,


            928-WP-10712-2022-II.odt                              1 of 18
   R/o: RX-1/11, Room No. 2,
  Bajaj Nagar, Walunj, Aurangabad
  Tq. & Dist: Aurangabad

9] Shivaji Asaram Misal
   Age: 38 Years, Occu: Nil,
   R/o: Takli, Khultabad,
   Tq. Khultabad & Dist: Aurangabad

10] Tarachand Murlidhar Sontakke
    Age: 56 Years, Occu: Nil,
    R/o: Galli No. 03, Ghandinagar,
    Ranjangaon (Shenpunji), Aurangabad
    Tq. & Dist: Aurangabad

11]Ramesh Vitthal Bondre
   Age: 44 Years, Occu: Nil,
   R/o: Bharatnagar, Vitava
   Post Ghanegaon, Tq. Gangapur,
   Dist: Aurangabad

12] Subhash Anna Vanarase
    Age: 42 Years, Occu: Nil,
    R/o: Plot No. 637, CIDCO, Waluj,
    Mahanagar-1, Aurangabad
    Tq. & Dist: Aurangabad

13] Gajanan Vitthal Sarate
    Age: 38 Years, Occu: Nil,
    R/o: Girjamata Mandir,
    Mitmita, Padegaon, Aurangabad,
    Tq. & Dist: Aurangabad

14] Deelip Shankar Arak
    Age: 49 Years, Occu: Nil,
    R/o: Naigaon, Post Waluj
    Tq. Gangapur & Dist: Aurangabad

15] Rajendra Baburao Dhumal
    Age: 48 Years, Occu: Nil,
    R/o: New Hanuman Nagar,
   Ranjangaon Shenpunji,
   Tq. Gangapur & Dist: Aurangabad       .....PETITIONERS




928-WP-10712-2022-II.odt                             2 of 18
              VERSUS

1] M/s Laxmi Riksha Auto Body Pvt Ltd,
   Through its Director
   Plot No. 1,170/154/109, MIDC Walunj
   Aurangabad, Tq & Dist. Aurangabad

2] M/s Luminaz Safety Glass Pvt Ltd,
   Through its Director
   Gut No 62, 63 and 66,
   Pune Highway, Limbejalgaon,
   Gangapur, Aurangabad
   Tq & Dist. Aurangabad

3] Laxmi Riksha Body Employees Union
   Through its President
   R H-36/5, Aurangabad Electrical
   Housing Society, Bajaj Nagar,
   MIDC Waluj Aurangabad             ......RESPONDENTS

                                   CORAM : R. M. JOSHI, J.
                                   DATE      : 21st January, 2025

JUDGMENT :

-

1. By consent of both sides, heard finally at the stage of

admission.

2. Petitioners herein are the workmen of respondent Nos. 1 and

2 company and being aggrieved by rejection of statement of claim filed

by them in Reference (IT) No. 06/2021 by order dated 04.01.2022

present petition is filed.

3. The facts which led to the filing of the petition can be

narrated in brief as under :-

928-WP-10712-2022-II.odt 3 of 18 Petitioners are workmen of respondent Nos. 1 and 2. Those

respondents are private limited companies engaged in manufacturing of

automobile parts and having manufacturing units at the addresses

mentioned in title clause. Respondent No. 3 is Trade Union duly

registered under the Trade Unions Act, 1926 and claims to have been

representing of workmen of respondent Nos. 1 and 2 company.

4. The case of the petitioners is that there are in all 56

workmen employed with respondent Nos. 1 and 2. There is allegation

that though these two companies are shown as separate entities and

have different registration under the Companies Act, but they are closely

supervised, managed and controlled by same person and, therefore, a

single unit. It is further claimed that the production unit of both

companies is one and the same. There is further allegation of the

present petitioners that though 56 workmen are shown as permanent

workmen and there are other contractual workmen engaged by these

companies. It is alleged that notice of closure was issued by respondent

No. 1 company. Respondent No.3-Union issued demand notice to

respondent No. 1 company for withdrawal of closure notice and providing

work to all 56 permanent workmen in another unit i.e., respondent No.

2. Pursuant to the said demand notice, conciliation process was initiated

however it culminated into failure. Thus, failure report came to be

928-WP-10712-2022-II.odt 4 of 18 submitted on 24.06.2021 and taking cognizance of the same, State

Government has referred the dispute for adjudication to the Industrial

Court, Aurangabad Reference (IT) No.06/2021. It is alleged by

petitioners that the respondent No. 3-Union is in collusion with

respondent Nos. 1 and 2 and is acting against interest of employees. It

is also claimed that the Union has failed to point out correct factual

position before the Conciliation Officer that there are 5 sister companies

of respondent Nos. 1 and 2 engaging more than 700 temporary

workmen and, therefore, conciliation proceeding failed. In these

circumstances, since the petitioners did not want to be represented by

respondent No. 3-Union, they filed independent statement of claim

before the Industrial Court. Industrial Court passed suo moto order vide

Exhibit 1 and rejected the statement of claim filed by petitioners. Being

aggrieved by the said order, this petition.

5. Learned counsel for the petitioner has drawn attention of the

Court to the provisions of the Industrial Disputes Act more particularly

Industrial Dispute Maharashtra Rules 16 and 22(2) which according to

him provide for service of notice to the Union as well as to the workmen

calling upon them to file statement of claim. He drew attention of the

Court to Form V and VIII which according to him sufficiently

demonstrates that the workmen are within their right to file statement of

928-WP-10712-2022-II.odt 5 of 18 claim if they choose not to be represented by the Union. It is his

submission that the Industrial Court has committed serious error by

placing reliance on Section 18(3)(d) of the Industrial Dispute Act in

order to reject the statement of claim filed by the petitioner-workmen.

He also made reference to Section 36 of the Act which deals with the

representation of the parties and according to him since respondent No.

3 Union is not a recognized union under the provisions of Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour Practices

Act, 1971 (For short "MRTU & PULP Act") it cannot claim exclusive

right to represent of all the workmen.

6. Learned counsel for the respondent No. 3 Union contended

that the petitioners as well as all other workmen of respondent-company

are members of this union even as of date. It is his further submission

that except for bold statement that the union is not functioning in the

interest of the workmen, prima facie there is absolutely no material to

hold so. It is his submission that the Union in fact had filed proceedings

before the Industrial Court seeking directions of payment of wages to

the workmen and the present petitioners are also beneficiary of the said

order. Thus, it is his submission that having regard to the fact that there

is absolutely no evidence to show any collusion between union and the

management, the petitioners are not justified and cannot be permitted

928-WP-10712-2022-II.odt 6 of 18 to file statement of claim. According to him, permitting petitioners to file

statement of claim would lead to the inference that Union is not acting in

the interest of workmen, without any case being made out to that effect.

7. Learned counsel for the employer though at the outset

submitted that the employer has nothing to do with issue and the factual

aspects of the case. He, however, sought to argue that any dispute

between the workmen and workmen, workmen and union also amounts

to industrial dispute and as an incidental issue, it may be open for the

Industrial Tribunal to decide the same at appropriate time in the instant

reference. He has also drawn attention of the Court to the provisions of

the Industrial Dispute Act and rules framed therein in order to seek

appropriate order.

8. At the outset, the order of reference needs to be considered

which reads thus:

"vkns'k vkS|ksfxd fookn vf/kfu;e] 1947

dzekad dmvk@vkSckn@vkSla@vkSfov@th- Mh@,l,ih@09@2021] T;k vFkhZ vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 pk 14½ dye 39 ¼c½ vUo;s iznku dj.;kr vkysY;k 'kDrhpk okij d#u egkjk"Vª 'kklukus m|ksx mtkZ o dkexkj foHkkxkph vf/klqpuk dzekad vk;fM,&2002@5686@¼2882½@ dke & 3] fnukad 18-08-2003 }kjs vls funsZ'k fnys vkgsr dh] mDr vf/kfu;ekP;k dye 10 ps iksV dye ¼1½ vkf.k dye 12

928-WP-10712-2022-II.odt 7 of 18 ps iksV dye ¼5½ vUo;s 'kklukl okijrk ;s.;ktksX;k 'kDrh dkexkj mi vk;qDr vkSjaxkckn foHkkx] vkSjaxkckn ;kaukgh okijrk ;srhy] vkf.k T;k vFkhZ egkjk"Vª 'kklu gs lnj izdj.kh leqfpr 'kklu vkgs-

vkf.k T;k vFkhZ dkexkj mivk;qDr] vkSjaxkckn foHkkx] vkSjaxkckn ;kauh jkesV vf/kdkjh vkSjaxkckn ;kaP;k vkS|ksfxd fookn vf/kfu;e 1947 P;k dye ¼1947 pk 14½ dye 12 P;k iksV dye ¼4½ vUo;s 1- es y{eh fj{kk ckWMh izk- fy- IykZV ua- 170@154@109- ,e-vk;-Mh-lh- okGqt] vkSjaxkckn- 2- yqehuk> lsQVh Xykl izk-fy- xV ua- 62] 63 vkf.k 66] vkSjaxkckn&iq.ks gk;os] fyacstGxko] xaxkiqj] vkSjaxkckn- vkf.k y{eh fj{kk ckWMh ,EiykWbZt ;qfu;u- Jh lat; dMqckG dis vkj-,p-36@5] vkSjaxkckn bysDVªhdy gkSflax lkslk;Vh] ctktuxj] okGqt] vkSjaxkckn] ;kapsrhy vkS|ksfxd fooknkP;k lkscr ifjf'k"Vkrhy ekx.;kckcr lknj dsysY;k vlQyrk vgoky fopkjr ?ksryk vkgs-

vkf.k T;k vFkhZ] dkexkj mi vk;qDr] vkSjaxkckn foHkkx] vkSjaxkckn ;kapk mDr vgoky fopkjkr ?ksr lnj fookn vkS|ksfxd U;k;kf/kdj.k ;kaP;k dMs vfHkfu.kZ;kFkZ lanHkZ dj.;kl ld`rn'kZuh ckc vkgs v'kh [kk=h >kyh vkgs-

R;k vFkhZ] vkrk mDr vf/klqpus}kjs iznku dj.;kr vkysY;k vkS|ksfxd fookn vf/kfu;e] 1947 P;k dye 12 P;k iksV dye ¼5½ e/khy 'kDrhpk okij d#u dkexkj mi vk;qDr] vkSjaxkckn foHkkx] vkSjaxkckn gs lnj fookn vfHkfu.kZ;klkBh ek- v/;{k vkS|ksfxd U;k;ky;] egkjk"Vª eqacbZ ;kaps vUo;s izLFkkihr dj.;kr vkysY;k ek-lnL;] vkS|ksfxd U;k;ky;] vkSjaxkckn ;kaP;kdMs ikBfor vkgs- izLFkkihr dj.;kr vkysY;k ek- lnL;] vkS|ksfxd U;k;ky;] vkSjaxkcn ;kaP;kdMs ikBfor vkgs-

ifjf'k"V ;k lkscr tksMysY;k ifjf'k"Vk e/khy ekx.;k-"

This shows that the parties to reference are respondent Nos. 1 &2 and

928-WP-10712-2022-II.odt 8 of 18 respondent No. 3 Trade Union. Thus ordinarily right to file statement of

claim would be with the Union, who is party to the reference.

9. Undeniably, there are total 56 workman involved in the

reference and all are members of this Union. Pertinently, out of these 56

workmen, only 15 workmen claimed that the union is not representing

workmen effectively. Majority of the workmen do not think so and they

reposed faith in Union. Interestingly, these 15 workmen still continue to

be members of the respondent-union. Further, admittedly after closure,

Union has taken up issue of closure before the Conciliation Authority and

has represented all the workmen therein, without making discrimination

of any nature between them. Even after closure, a complaint was filed

under the Unfair Labour Practices Act against the employer and interim

relief is obtained seeking direction of payment of wages. Petitioners/15

workmen are also beneficiary of this order. Though the employer

disputes that this order does not pertain to the closure and according to

the employer, the order was in respect of lay off, but as a matter of fact,

Union has espoused the cause of all workmen including petitioner.

10. Thus, there is ample evidence on record to indicate that the

union has represented and is representing effectively all the workmen

even after closure. The reference made to the Industrial Court under

Section 10 of the Industrial Disputes Act also indicates that the

928-WP-10712-2022-II.odt 9 of 18 Industrial Dispute is raised on behalf of all workmen without making any

kind of discrimination between two sets of workmen.

11. In the light of these facts, whether it would be permissible

for the petitioners to independently contest the said dispute by filing

separate statement of claim. No doubt, part III of the Industrial Dispute

Maharashtra Rules, 1957 makes provision for the procedure to be

followed by the Industrial Court and Labour Court for the purposes of

decision of a reference. It also provides for various forms which require

publication of notice of the dispute and calling upon the workmen too for

filing their statement of claim. The said notices indicate that where the

workmen desire not to be represented by the Union, they are permitted

to file statement of claim. Thus, forms and relevant rules can be said to

have been made in order to ensure that any workman who is not

represented by Union, is not denied the hearing in a dispute. This would

not apply to the petitioners who are members of the respondent-union.

12. At this stage, it would also be relevant to consider the

provision of Section 36 of the Act, which reads thus;

"36. Representation of parties. -

(1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-

(a) any member of the executive or other office bearer of a registered trade union of which he is a

928-WP-10712-2022-II.odt 10 of 18 member;

(b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;

(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorised in such manner as may be prescribed.

(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-

(a) an officer of an association of employers of which he is a member;

(b) an officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated;

(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.

(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.

(4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceedings and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be."

This provision more than sufficiently demonstrates that

928-WP-10712-2022-II.odt 11 of 18 where a workmen is party to a dispute, he shall be entitled to be

represented by a registered trade union of which he is member. In case,

he is not a member he could be represented by any other workmen as

provided in clause(c) above. The contribution of membership of

petitioners with respondent-union therefore disentitle them to deny

representation by the Union.

Now coming to provision of Section 18 of the Act, which

reads thus:

"18. Persons on whom settlements and awards are binding-

(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.

(2) Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.

(3) A settlement arrived at in the course of conciliation proceedings under this Act [or an arbitration award in a case where a notification has been issued under sub-

section (3-A) of section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable] shall be binding on-

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;

928-WP-10712-2022-II.odt 12 of 18

(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;

(d) where a party referred to in clause (a) or clause

(b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part."

This provision shows that an award passed by Tribunal shall

be binding on all parties to Industrial dispute, Clause(b) of this provision

enables the Industrial Tribunal to hold that the summons to appear is

without proper cause. It is thus clear that the substantive provision of

Section 18 would override the rules which are essentially directory in

nature. Thus, even if notice is contemplated to have been issue to all

workmen, it is discretion of Tribunal to permit the workmen to

independently file the statement of claim, when they are admittedly

represented by Union.

13. There is no need to emphasis on the importance of collective

bargaining. This is not only necessary to take care of interest of the

weaker section of Industry i.e., workmen but also relevant for

maintenance of industrial peace, which is of paramount importance for

over all growth of Industries and ultimately in the strengthening of

928-WP-10712-2022-II.odt 13 of 18 economy of country. The collective bargaining not only helps weaker

class to unitedly fight for their rights but also enable the employer to

meet the representative i.e., Trade Union, so that the settlements could

be arrived at and implemented. In the light of this fact, perusal of

Section 18 indicates that the settlement if arrived outside conciliation,

the same would bind only parties to the agreement but once settlement

takes place during the course of conciliation, same binds all parties to

the dispute. Similar is application in respect of an award passed by

Tribunal.

14. Reverting back to the facts of the case, Respondent-Union

has been representing all the workmen since time prior to the closure.

There is no denial of fact that Union on behalf of all workmen, raised

industrial dispute, as it can be seen from the order of reference.

Similarly, there is material on record to indicate that Union has acted in

the interest of workmen. Most importantly all workmen including

petitioners contributed their membership of Union till date.

15. The only contention which could have been considered of the

petitioners is that if there was any apparent material on record to

indicate that the Union is not functioning in the interest of workmen at

which the fact that Union is representing the workmen since time prior

to the closure and after closure and also have filed litigation before the

928-WP-10712-2022-II.odt 14 of 18 Industrial Court and obtain orders in their favour. These facts clearly

indicates that there is no apparent substance in the contention of the

petitioner workmen that union is not acting in their interest. In any case,

it would not be within jurisdiction of the Tribunal to decide the dispute

between workmen and union, in the reference owing to the limitations of

jurisdiction of reference Court/Tribunal.

16. In this context learned counsel for respondent-employer

made submission that the dispute between the petitioners and the Union

can be permitted to be adjudicated in the present reference. To

appreciate the said submissions, it would be relevant to consider Section

2(k) of the Act, which defines term Industrial Dispute

"Section 2(k)"Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"

The definition of industrial dispute requires that there exist a dispute

between employer and employees or between employer and workmen or

between workmen and workmen. The word "workman" is defined by

Section 2(s) of the Act which reads thus;

"Section 2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or

928-WP-10712-2022-II.odt 15 of 18 reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

A bare perusal of the said definition shows that a Trade Union cannot be

termed as a workman. Nor can it be an employer. Moreover any dispute

between workmen and Trade Union, would not be connected with

employment-non employment or terms of employment or with

conditions of labour of any person. Thus the dispute between petitioner

workmen would not become a industrial dispute. Thus, question of such

issue being determined by tribunal does not arise.

17. Apart from this, the reference Court is not permitted to go

928-WP-10712-2022-II.odt 16 of 18 beyond the terms of the reference. Hence, on this ground petitioners

cannot be allowed to participate in the proceedings. Not only that

Tribunal would not be able to expand terms of reference but to permit

any such dispute in the reference would only lead to defect the interest

of workmen, as there cannot be a decision of reference on merit

expeditiously.

18. It is necessary to take note of the inherent danger in

permitting such different statements of claim to be filed. If it is so

allowed hypothetically, even employer would be in a position to

influence/instigate the individual workmen or few workmen to file

statement of claim, to see that the dispute does not get adjudicated on

merit and it could be kept pending on ancillary issues. Without

attributing any such thing to the parties herein, suffice it to say that the

issue of closure of establishment is of July 2021 and reference of same

year, but adjudication thereof is yet to begin.

19. As far as contention of petitioner-employer is that

conciliation failed due to the Respondent-Union not putting forth the

correct facts is concerned, the Conciliation Officer has no authority to

adjudicate and it can only attempt amicable settlement. Thus, this Court

finds no substance in the said contention of petitioner of attributing mala

fides against Union.

928-WP-10712-2022-II.odt 17 of 18

20. In view of above discussion, and as per clause (b) of Section

18(3), it was very much within the power of Tribunal to suo Moto pass

order impugned, prohibiting petitioner to file statement of claim.

Particularly, in the facts of the exercise of the said power is just and

proper. The said order has not led to miscarriage of justice.

21. This Court, therefore, finds no error being committed by the

Industrial Court. For want of any perversity in the findings recorded by

the Industrial Court, in exercise of writ jurisdiction, no interference is

called therein. Hence, petition dismissed. The Industrial Tribunal is

directed to decide reference within a period of 6 months from today.

                                                        (R. M. JOSHI, J.)


bsj




928-WP-10712-2022-II.odt                                           18 of 18