C.K. Thakker, C.J.
1. This appeal is filed against the judgment and order of the learned single Judge, dated July 11, 2001 in Writ Petition No. 1111 of 1997. By the said order, the learned single Judge confirmed the order passed by a Member of the Industrial Court, Thane, dated 24th October, 1996 in Complaint (ULP) No. 519 of 1996.
2. Certain facts are not in dispute. On or about June 30, 1992, the Appellant Company declared a Voluntary Retirement Scheme ('first VRS' for short) for its employees, which was accepted by 337 employees. On March 16, 1994, the Appellant declared second VRS which was in the nature of Memorandum of Understanding ('MoU') ('second VRS' for short). That was accepted by 179 employees. Respondent Nos. 1 to 6 who had accepted first VRS of 1992 filed a complaint before the Industrial Court, Thane on July 20, 1994, alleging that the Company had committed unfair labour practice under item Nos. 5, 9 and 10 of the Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act'). It was contended by them that the benefits which were given to employees who had accepted second VRS (MoU of 1994) had not been extended to the complainants who retired in 1992. The said action was illegal, unlawful and amounted to unfair labour practice.
3. The Industrial Court, after considering the evidence on record, oral as well as documentary, upheld the contention, granted the relief prayed by the employees and directed the Appellant Company to pay an amount of Rs. 90,000/- (Rupees Ninety thousand only) to each employee as had paid to 179 employees who had accepted second VRS in 1994.
4. The order passed by the Industrial Court was challenged by the Appellant Company by filing a petition. The learned single Judge, after hearing the parties and considering the contentions raised by the learned counsel, dismissed the petition and confirmed the order passed by the Industrial Court.
5. Being aggrieved by the said order, the Appellant has approached this Court by filing the present Letters Patent Appeal.
6. At the time of admission hearing, a Division Bench of this Court noted that the counsel on both sides agreed that the decision of the Court on the Letters Patent Appeal would govern the cases of all 337 employees. This was done, submitted the learned counsel for the respondents, as when a complaint was filed in the Industrial Court, it was only by six employees and all 337 employees were not joined as complainants.
7. We have heard the learned counsel for the parties. Several contentions were raised on behalf of the Company by the learned counsel for the Appellant. It was urged that the complaint was not maintainable since it was not filed by a recognised union as required by the Act. It was also contended that the complainants could not be said to be workmen as defined in Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act'). It was also submitted that a letter purported to have written by P. Krishnamurthy on 11th July, 1992 was not proved in evidence, and hence could not have been relied upon. On merits, it was contended by the counsel, that the order passed by the Industrial Court and confirmed by the learned single Judge was contrary to law and deserves to be quashed and set aside.
8. The learned counsel for the respondents, on the other hand, submitted that after considering the relevant facts and circumstances and evidence on record, the Industrial Court granted relief in favour of the respondents. The learned single Judge once again considered the decision of the Industrial Court and dismissed the Petition by recording cogent, germane and valid reasons. The orders, hence, do not deserve interference by this Court and the Letters Patent Appeal deserves to be dismissed.
9. Having heard the learned counsel for the parties, in our opinion, no case has been made out by the appellant so as to interfere with the order passed by the Industrial Court and confirmed by the learned single Judge.
10. So far as maintainability of complaint is concerned, on three grounds, it was contended that the complaint was not maintainable.
11. The first ground was that such a complaint could be filed only by a recognised union and not by an individual workman. In our opinion, the learned counsel for the respondents is right in submitting that in the instant case, keeping in view the grievance made by the workman and the reliefs prayed, such a complaint was maintainable. The case of the aggrieved workmen was that there was unfair labour practice on the part of the appellant company falling under items 5, 9 and 10 of Schedule IV of the Act. Items 5, 9 and 10 read as under:
'5. To show favouritism or partiality to one set of workers, regardless of merits.
9. Failure to implement award. Settlement or agreement.
10. To indulge in act of force or violence.'
The counsel drew our attention to Sections 21 and 29 of the Act. Section 21 confers right on the recognized union to appear or act in proceedings relating to certain unfair labour practices. Sub-section (1) states that no employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of the Act except through the recognised union. Thus, if unfair labour practice specified in and covered by items 2 or 6 Schedule IV of the Act is complained, it is only the recognised union which an approach the Court.
12. It is not in dispute that in the instant case, neither item No. 2 nor item No. 6 of Schedule IV of the Act is alleged to have been violated. The allegation relates to unfair labour practice falling under items 5, 9 and 10 and particularly items 5 and 9. The complaint was, therefore, maintainable. In our considered opinion, as the case is not covered by Sub-section (1) of Section 21 of the Act, the complaint filed by the workers was maintainable. The first contention, therefore, has no force and is rejected.
13. The second preliminary objection was that though the prayer was made to grant relief in favour of 337 employees, the complaint was filed only by six employees. Other employees were, therefore, not entitled to any relief.
14. In the earlier part of the judgment, we have observed that when the Letters Patent Appeal was placed for admission hearing, a concession was made which was recorded in the order itself that it was agreed by the counsel that the decision of the Court on the Letters Patent Appeal would govern the cases of all 337 employees who were similarly situated. In the light of the said statement, at the time of admission which was recorded by the Division Bench, it is not open to the appellant now to contend that the complaint at the instance of only six employees was not maintainable and the remaining employees were not entitled to relief which could be granted to six employees who had approached the Industrial Court.
15. But even otherwise, in our opinion, the statement was well conceived and was in consonance with the provisions of Sections 28 and 29 of the Act.
16. Section 28 of the Act lays down procedure in dealing with complaints to unfair labour practices.
17. Sub-section (1) of the said section enables a union or an employee to file a complaint before a competent court against a person who has engaged or is engaging in any unfair labour practice.
18. Bare reading of the said provision leaves no room of doubt that an aggrieved employee can file a complaint in a competent court against a person indulging in unfair labour practice. A court has to consider such complaint and to pass an appropriate order.
19. There is yet another provision, which is material. Section 29 of the Act declares the parties who are bound by an order of the Court. It inter alia states that in the case of an employer who is a party to the complaint before such Court in respect of the undertaking to which the complaint relates, his heirs, successors or assigns in respect of the undertaking to which the complaint relates, an order of the court would be binding.
20. The learned counsel for the respondents, in our opinion, is right in contending that the decision, order or judgment in such case would be in rem and it would apply 'in respect of the undertaking to which the complaint relates.'
21. We are, therefore, of the view that apart from concession of counsel, the complaint instituted by the respondents was maintainable.
22. It was then contended that the respondents were not 'workmen'. They, therefore, could not have approached the Industrial Court and the Industrial Court had no jurisdiction to entertain, deal with and decide the complaint. The order passed by the Industrial Court was, therefore, without jurisdiction and non est. Confirmation of such 'dead letter' by a single Judge of this Court could not put 'life' into the order and even that order also cannot be said to an order in the eye of law.
23. The argument proceeds on the footing that as soon as first VRS was accepted by 337 employees in 1992, the relationship of employer and employees between appellant company ad respondents came to an end. It was thereafter not open to the respondents to approach Industrial Court and make complaint of 'unfair labour practice' invoking the provisions to the Act. Hence, even if it is assumed that the action of the company was not in accordance with law, the respondents could not have approached Industrial Court.
24. In support of the above contention, the learned counsel drew our attention to the definition of 'employee' in Clause (5) of Section 3 of the Act, which reads thus:
'employee' in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in Clause (13) of Section 3 of the Bombay Act, and in any other case means a workman as defined in Clause (s) of Section 2 of the Central Act, and a sales promotion employee as defined in Clause (d) of Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976.'
25. Reference was also made to Clause (s) of Section 2 of the ID Act. The said provision is material and the relevant part requires to be reproduced;
'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 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 -... ... ... ...'
26. Since the expression 'employee' under Clause (5) of Section 3 of the Act covers 'workman' as defined in Clause (s) of Section 2 of the ID Act, the question is whether the respondents could be said to be 'workmen'. If they would fall within the said expression in Section 2(s) of the ID Act, they would also be held to be 'employees' under Section 3(5) of the Act subject to the provisions of the Act and could have made complaint against the appellant company against 'unfair labour practice'. If, on the other hand, they were not 'workmen' (under the ID Act) and 'employees' (under the Act), they could not have invoked the jurisdiction of the Industrial Court and the said court could not have taken cognizance of such complaint.
27. The learned counsel on both the sides relied on certain decisions to substantiate their arguments. We may consider few of them.
28. The first leading decision of the Supreme Court on the point is in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, : (1958)ILLJ500SC . After considering the Preamble and relevant provisions of the ID Act, speaking for the majority, S.K. Das, J. stated:
'The Act is primarily meant for regulating the relations of employers and workmen - past, present and future.
(emphasis supplied)
29. A reference may also be made to a decision of the Division Bench of this Court in P.L. Mayekar v. Amichand, : AIR1956Bom30 . One of the questions which was raised was whether dismissed employees could be said to be workmen under Section 2(s) of the ID Act, as it then stood. Section 2(s) as then stood reads as under:
'workman' means any person employed including an apprentice in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government.'
30. Considering the provision liberally and keeping in view the underlying object, the court held that a person who had ceased to be in service could yet be a 'workman' as defined in Section 2(s) of the Act.
31. Speaking for the Court, Chagla, C.J. observed:
'Now, the definition of 'workman' does not indicate that the workman must be employed at a particular moment of time. What is emphasised is that he must be employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward; in other words, the definition is intended to point out what the nature and characteristic of a person is who can be deemed to be a workman within the meaning of the Act. In our opinion, a workman as defined in this sub-section means any person who is employed at any time in an industry.'
(emphasis supplied).
32. In ICI India Ltd. v. Presiding Officer and Ors. (1993) 1 CLR 753, a single Judge of this court considered the question. Referring to relevant case law on the point, the court stated that 'an industrial dispute can legitimately arise even after the service of the workman has come to an end and the master servant relationship has ceased'.
33. It appears that the matter was carried by the aggrieved party by preferring an appeal. The Division Bench in ICI India Ltd. v. Presiding Officer, National Industrial Tribunal and Ors., (1994) 2 CLR 494 approved the above observations of the learned single Judge and stated:
'It was urged that Section 2(s) defines 'workman' as any person employed in any industry for hire or reward and a pensioner, who is retired from employment, cannot be treated as 'any person employed'. We are unable to find any merit in the contention. The expression 'any person' in Section 2(s) must be interpreted liberally so as to include past and present workmen. It is futile to suggest that a dispute about revision of pensionary benefit cannot be raised by the existing workmen and which dispute takes in its sweep the benefit which is available even to a retired employee. The objection to impleading Association of Pensioners overlooks that the reference is made not at the behest of the Association but at the behest of the existing employees and in such a reference a demand is made for revision of scheme providing for grant of pension and, therefore, joining of Association of Pensioners to the reference was absolutely in order. The pensioners, who are former employees of the company, were obviously interested in the result of adjudication and, in any event, we are unable to appreciate what prejudice has caused to the company by joining of the Association of Pensioners to the reference.'
34. The learned counsel for the company, however, placed strong reliance on a decision of the Apex Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr., : (2001)ILLJ569bSC , wherein it was indicated that where certain workmen were not accepted by the company as its employees, they could not invoke the provisions of the Act.
35. In our opinion, however, the facts in Kalyani Steels Ltd. were totally different and the ratio laid down does not apply to the case on hand. There the employees were engaged by a contractor and the case put forward by the union was that they were employees of the company but the said status was denied by the company only to defeat their claim. It was held by the Industrial Court that they were not employees of the company and the said finding was not disturbed by the Supreme Court. Hence, Kalyani Steels Ltd. does not carry the case of the appellant anywhere.
36. Similar was the position in General Labour Union (RED FLAG), Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. and Ors.; : (1995)IILLJ765SC . In the said case, the Apex Court noted that it was 'an admitted fact that these workmen were employed by a contractor who was given a contract to run the canteen in question'. The Court went on to state; 'Even in the complaint, there was no case made out that the workmen in question had ever been accepted by the Company as its employees.' The compliant proceeded on the basis 'as if the workman were a part of the work-force of the company'. The facts on record revealed that those workmen were never recognized by the company as its workmen, and it was consistent contention of the company that they were not its employees. The Industrial Court upheld the preliminary objection and dismissed the complaint which was upheld by the High Court. In view of such finding, the Supreme Court refused to interfere.
37. In our view, the case was decided on the basis of facts before Their Lordships and it does not help the appellant company in this case.
38. In the present case, the facts stated by the respondents are not in dispute. It was never disputed by the company that in all 337 employees (inclusive of complainants) were working with the Company. In 1992, first VRS was introduced and they were asked to exercise option. It was exercised by all the employees. It was in the light of the fact that subsequently in 1994 when second VRS (MoU) was issued and 179 employees were granted certain benefits, they (337 employees) complained that they would also be entitled to similar benefits granted to 179 employees and the action of the company in not extending those benefits was discriminatory, and they were individually entitled to an amount of Rs. 90,000/- also. Keeping in mind that grievance, they approached the Industrial Court, Thane.
39. In our considered opinion, therefore, the grievance of the workmen was referable to and had nexus with the act complained of which took place in 1992 when first VRS was accepted by them and certain benefits were granted. Obviously, therefore, Industrial Court had jurisdiction as they could be said to be 'workmen' for that limited purpose. In our opinion, therefore, neither the Industrial Court nor the learned single Judge had committed any error of law and/or jurisdiction in entertaining the complaint and in deciding it.
40. On merits, in our opinion, the Industrial Court as well as the learned single Judge were right in considering the evidence on record and in coming to the conclusion that in 1992, when first VRS was accepted by the employees they were granted certain benefits to which they were entitled. In 1994 when another group of 179 employees accepted second VRS (MoU), the benefits granted to that group of employees ought to have been given to 337 employees also. It is further clear from the letter dated 11th July, 1992 said to have been written by P. Krishnamurthy, Vice President of the Company to Mahdukar Sirpotdar that all the employees who would accept the VRS would be entitled to all benefits which would be given to other employees and that 'the apprehension in the employees that those who do not accept VRS this time would be paid more' was ill-founded. Mr. Sirpotdar was also assured that the Company would not indulge in such a discrimination.
41. The Industrial Court considered that letter, in the light of the oral evidence of one of the employees and recorded a finding that the letter was proved and was not disputed by the respondent. In view of the above letter which was proved and which had been relied upon by the Industrial Court as well as by the learned single Judge, to us, it cannot be said that no such order could have been passed. Thus, even on merits, the order passed by the Industrial Court, Thane and confirmed by the learned single Judge does not call for interference.
42. As we see no substance in any of the contentions raised by the learned counsel for the appellant, the Letters Patent Appeal deserves to be dismissed and is accordingly dismissed with costs.
43. In view of dismissal of appeal, interim relief granted earlier deserves to be vacated and is hereby vacated.
44. The learned counsel for the appellant, at this stage, prays for continuation of the interim relief for some time so as to enable the appellant to approach the Supreme Court. In our opinion, the prayer is reasonable. When the appellant intends to approach the Apex court and interim relief granted earlier is operative till today, it would be in the interest of justice, if we continue that relief for a period of eight weeks from today. Order accordingly.
45. The learned counsel for the respondents drew our attention to the direction of the learned single Judge impugned in the present LPA. In paragraph 31 of the decision, it was observed as under:
'In the facts and circumstances of this particular case, I feel it appropriate to grant interest on the said amount of Rs. 90,000/- at the rate of 6 per cent per annum from April 15, 1994 till the date of the payment. The Company is, therefore, directed to pay each of the employees and the complainants who had accepted the first VRS declared by notice dated June 30, 1992, a sum of Rs. 90,000/- together with interest thereon at the rate of 6 per cent per annum from April 15, 1994 till payment.'
It was stated that the bank guarantee which has been furnished by the appellant does not cover interest part. It is, therefore, directed that the company will furnish bank guarantee which will include interest. Such bank guarantee will be furnished by the company within four weeks from today. Order accordingly.
Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.