Oral Judgment:
The Petitioner (original Respondent) has challenged the impugned Order dated 23rd January 2012 passed by the Member, Industrial Court, Maharashtra, Pune on the complaint under Section 28 read with Item 9 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTYU and PULP Act).
The operative of the Order is as under:
â1) The Complaint (U.L.P) No.12/2007 is allowed.
2) It is hereby declared that the Respondent has engaged in unfair labour practice within the meaning of item 9 of Schedule IV of the MERTU and PULP Act and the Respondent is directed to cease and desist from unfair labour practice.
3) The Respondent is directed to implement the terms of an Award in Reference (I.T.) No. 24/2002 as well as settlement Dt. 30/9/2004 in respect of the employees involved in the complaint with further direction to the Respondent to extend them the benefits of said Award and settlement to which they are entitled under law.
4) No order as to costs.â
2. The Petitioner is a company engaged in the business of manufacture of wire harness for the automobile sector, employees around 500 permanent workmen in Pune factory.
3. In 2002, Union, namely Rashtriya Shramik Aghadi (recognized union), had raised a general demands for wage rise and other benefits in respect of the permanent employees of the company. Subsequently, the said demands were referred for an adjudication to the Industrial Tribunal, Pune, under Reference (IT) No. 24 of 2002.
4. On 30th September 2004, during the pendency of the aforementioned Reference, they had signed a Settlement, with the Respondent Union, giving wage rise and other benefits to its employees who were permanent as on 31st March 2004. Due to fierce competition in the automobile sector, the Petitioner company has set up a state of the Art Learning Center to facilitate the training of the trainees, so that trained manpower is created. Due to the market conditions and business variations, the Petitioner company was required to engage temporary manpower from time to time. The petitioner company had recruited 118 persons as trainees/temporaries between July 2002 to June 2004 at its factory at Pune. Respondent No.1 Union made a demand on 23rd March 2005 for absorption and permanency and other benefits in respect of the said temporary employees/trainees.
5. After negotiations and series of discussions with Respondent No.1 Union, a Settlement dated 9th April 2005 was entered into between the Petitioner Company and Respondent No.1 Union and all 118 temporaries/trainees have been made permanent and placed in new category IV and their service conditions were determined by the said Settlement. It was specifically agreed in the said Settlement that these employees will not be entitled to any other monetary benefits as applicable under Settlement dated 30th September 2004 for the permanent employees. Prior to signing the Settlement, the parties have negotiated and signed a Minutes of the Meeting dated 8th and 9th April 2005 (in Marathi).
6. Vide Award dated 20th September 2006 the aforementioned Reference (IT) No. 24 of 2002 was disposed of by the learned Industrial Tribunal, Pune, in terms of the Settlement dated 30th September 2004 for the permanent employees of the Petitioner.
7. In 2007, having taken the benefits under Settlement dated 9th April 2005, i.e. after the said temporary employees/ trainees were made permanent, the said temporary employees/trainees through, Respondent No.1 Union herein, raised a demand that the benefits of Settlement dated 30th September 2004, be extended to them, which was meant for the permanent workmen of the Company. The Petitioner declined the demand. Thereafter, Respondent No.1 Union filed Complaint (ULP) No.12 of 2007, before the Industrial Court, Pune, inter alia, prayed for extension of the benefits of settlement dated 30th September 2004 to the employees whose names appear in Annexure-1 to settlement dated 9th April 2005, from the date they are confirmed in service.
8. The Petitioner filed its Written Statement dated 18th January 2007 to the Complaint, denied the allegations made in the said complaint and stated the factual position of the matter. The Petitioner had, inter alia, contended that Mr. Undre, who has signed the said complaint, has no authority to file the said complaint. It was further contended that 2005 settlement was a package deal visavis the charter of demands of Respondent No.1 Union in respect of the temporaries/trainees, and it was specifically mentioned in 2005 settlement that they would not raise any fresh demands involving any financial burden on the company. It was further contended that there is specific clause in 2005 settlement that the temporaries/trainees would not be entitled to the benefits of 2004 settlement which was meant for permanent employees as on 31st March 2004. The Petitioner company raised the issue of limitation, i.e. the complaint is barred by limitation. Thereafter the Industrial Court framed issues, but the issue of limitation, though raised by the Petitioner Company in its written statement, was not framed by the learned Industrial Court. Thereafter the parties led oral evidence before the learned Industrial Court. One Mr. Ganesh Jaywant Jadhav was examined by the complainant (Respondent No.1) and he was cross-examined on behalf of the Petitioner Company. The Petitioner examined Mr. Shashikant Govind Kurbetti, General Manger (HR) of the Company, who had filed his Affidavit dated 15th November 2010 by way of examination in chief. He was cross-examined by the learned Advocate for the Complainant Union. After hearing the parties, the learned Industrial Court, Pune, vide his judgment and order dated 23rd January 2012 allowed the Complaint and directed the Petitioner to implement the Settlement dated 30th September 2004 and Award dated 20th September 2006, and has extended the benefits of the Award and Settlement to the employees involved in the complaint. The Petitioner submitted that the Order passed by the learned Industrial Court, Pune, is ex-facie bad in law or perverse or in excess of jurisdiction or an error of law apparent on the face of the record and/or suffers from total non-application of mind. The learned Industrial Court has not at all framed the issue of limitation, nor decided the said issue, despite specific pleadings by the Petitioner company in its written statement. Moreover, there are no pleadings in the original complaint claiming the benefits of the said Award. Hence the learned Industrial Court has travelled beyond the pleadings and scope of the complaint and granted reliefs which are not pleaded and claimed by the complainant Union. The Petitioner states that the benefits of the settlement dated 30th September 2004 could not have been granted to the temporaries and trainees, as under the 2005 settlement, it was specifically agreed that the temporaries/trainees will not get the benefits of the said 2004 settlement, and that they will not raise any demand involving any financial burden on the Petitioner Company, more particularly for the reason that the said 2004 Settlement was applicable to the employees who were permanent as on 31st March 2004. The learned Counsel for Respondents supported the Award/Order in all respect and read the Judgments also.
9. The Apex Court in Siemens Ltd. vs. Siemens Employees Union, [2011 (131) FLR 1100] in paragraphs 32, 33 and 34 observed as under:
â32. Reference in this connection may be made to a decision of this Court in Parry and Co.Ltd. v. P.C. Pal and others, [1970 (21) FLR 266 (SC)., a three-Judge Bench of this Court held as follows:-
âIt is well established that it is within the managerial discretion of an employer to organize and arrange his business in the manner he considers best. So long as that is done bonafide it is not competent of a tribunal to question its propriety. If a scheme for such reorganization results in surplus age of employees no employer is expected to carry the burden of such economic dead weight and retrenchment has to be accepted as inevitable, however unfortunate it is....â
(para 14, page 1341 of the report)
33. In the instant case no malafide has been alleged against the appellant-company. Nor it is anybody's case that as a a result of reorganization of its working pattern by introducing the scheme of promotion any person is either retrenched or is rendered surplus.
34. In the given situation, this Court cannot appreciate how by introducing the scheme of promotion to which the workers overwhelmingly responded on their own can it be said that the management has indulged in unfair labour practice.â
10. The memorandum of settlement, admittedly read and recorded under section 2(p) read with section 18(1) of th Industrial Disputes Act, 1947 and Rule 62 of the Industrial Disputes (Bombay) Rules, 1957.
Those provisions are as under:-
âSec.2(p) - âSettlementâ means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorized in this behalf by] the appropriate Government and the conciliation officer;â
âSec.18 (1) â 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.â
âRule 62 - (1) A settlement arrived at in the course of the conciliation proceedings or otherwise, shall be in Form 'XVI'.
(2) The settlement shall be signed by â
(a) in the case of an employer, by the employer himself, or by his authorised agent, or where the employer is an incorporated company or other body corporate, by the agent, manager or other principal officer of such company or body;
(b) in the case of the workmen, either by the President or Secretary or such other officer of a trade union of the workmen as may be authorised by the Executive Committee of the Union in this behalf, or by five representative of the workmen duly authorized in this behalf at a meeting of the workmen held for the purpose.
(3) Where a settlement is arrived at in the course of conciliation proceedings, the Conciliation Officer or the Board, as the case may be, shall send a report thereof to the State Government together with memorandum of settlement signed by the parties to the disputes.
(4) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceedings before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Secretary to the Government of Maharashtra, Industries and Labour Department Bombay, the Commissioner of Labour Bombay, the Deputy Commissioner of Labour (Administration), Bombay, the Deputy Commissioner of Labour, Poona, the Deputy Commissioner of Labour, Nagpur and the Conciliation Officer concerned.â
11. Admittedly, the said memorandum covers the scope and coverage and the applicability of the settlement in the following terms:-
âI.2.(1) All the terms and conditions of this settlement shall be applicable to and binding on all the permanent workmen who are on the rolls of the Company as on 1.04.2004.
I.2.(2) The Company and permanent workmen to whom this settlement is applicable shall be bound by the terms of this settlement both in letter and spirit.
I.4(1) It is agreed between the parties that the benefits/rights/obligations flowing from this settlement shall apply to all the permanent workmen who are in members of the Tata Yazaki Employees Union and are in services of the Company as on 31.03.2004.â
12. The subsequent settlement, as averred even by the complainant and as recorded, shows that it was entered into after the negotiations and discussions. The settlement terms are also not in dispute. It was specifically mentioned that the temporary employees of the Union would be getting benefits of 2004 settlement, as it was expressly applicable to the employees who are permanent as on 30th September 2004.
13. The basic submission that Award dated 20th September 2006 should cover the complainants and/or other employees as per the case is unacceptable. The subsequent events and/or entitlement as based in the complaint cannot be extended in such a way, merely because the reference and/or litigation was pending which was ultimately concluded by Award dated 20th September 2006. The effect goes to the date of the Award and the settlement get finality. Considering the provisions and the scope and purpose of settlements including the clauses mentioned, referred and agreed by the Management as well as the Union and its members, the Award so passed on 20th September 2006 thus confirmed the settlement and its contents. The submission if accepted of the Respondent's Counsel and so the reasons, it means, there would have no finality to such settlement. It also means, the settlement would take effect only after confirmation and/or Award passed by the Court. This, in my view, frustrated the purpose and very object of the settlement and its terms and conditions. The finality needs to be given on the date of the settlement itself, basically when the parties have agreed and proceeded accordingly. The subsequent events, in no way, be permitted to disturb the settlement arrived at by the parties. The learned Judge while extending the benefit and/or the terms and conditions of the settlements by passing the impugned order, failed to consider all these aspects and purpose of such settlements. The pendency of the matter therefore, in no way is a sufficient reason to overlook the agreed and binding settlement between the parties. The order therefore, so passed, in my view, is bad in law and unsustainable.
14. The point of limitation so specifically raised but for want of issue, no finding whatsoever given by the learned Judge. I have observed in the case of SealandShipping and Export Private Limited vs. Kin-Ship Services (India) Private Limited, reported in 2011(5) Bom.C.R. 572, referring to the Supreme Court and section 3 of the Limitation Act that while passing and/or granting any monetary claim only, the Court needs to consider the aspect of delay in filing the claim. In the present case, the Petitioner had raised the issue of limitation. Therefore, in my view, it was necessary for the Court to consider it before passing the Award. The impugned order definitely has financial implication.
15. The judgments as recorded above and cited by the learned Counsel appearing for the Respondent in view of peculiar facts and circumstances, are of no assistance in support of the order. The facts and circumstances are totally distinct and distinguishable. This is not a case of any fraud and/or any misrepresentation where the Court at any point of time, read and/or interfere and/or revoke the settlement so arrived at between the parties. The clauses of settlements as recorded, itself shows that it was voluntary settlement between the parties and accordingly, they agreed and executed the terms. The concerned employees at the relevant time based upon the same have definitely acted upon and enjoyed the benefit. In the case of Siemens Ltd. (supra), it is settled that the managerial discretion of an employer to organize and arrange his business considering the need of the time deal with the business strategies just cannot be looked into by the Court unless there is some allegation of fraud and/or misrepresentation. All these allegations are missing in the present case.
16. Therefore, once the settlement is arrived at and agreed between the parties, the same binds all the concerned from the date of its execution. The others and/or similarly situated persons, cannot be permitted to claim for the extension of these settlement terms in such fashion, pending the confirmation/reference/Award. All these factors are not considered by the learned Judge.
17. Resultantly, I am inclined to remand the matter by quashing the impugned Award. The Court, as case is made out, empowered to remand the matter. Mere dismissal of complaint and/or setting aside the order will not serve the purpose. It will delay the matter further. The contentions so agitated in the pleadings, need to be adjudicated by the Court, within reasonable time, based upon the material available with them. The learned Judge to reconsider the matter after giving opportunity to all the parties. However, the Court, if application is made, may permit the parties to add and/or lead any further evidence.
18. Resultantly, impugned order dated 23rd January 2012 passed by the Industrial Court, Maharashtra, is quashed and set aside. The matter is remanded back for reconsideration on all aspects by giving opportunity to both the parties. The matter is expedited. All points are kept open. The hearing is expedited.
19. No order as to costs.