Narayan N. More and ors. Vs. State of Maharashtra Through the Secretary, Ministry of Labour, - Court Judgment

SooperKanoon Citationsooperkanoon.com/359230
SubjectLabour and Industrial
CourtMumbai High Court
Decided OnJun-27-2008
Case NumberWrit Petition No. 592 of 2008
JudgeS.B. Mhase and ;A.A. Kumbhakoni, JJ.
Reported in2008(5)ALLMR76; 2008(5)BomCR315; (2008)110BOMLR2259; 2008(6)MhLj472
ActsIndustrial Disputes Act, 1947 - Sections 2A, 10(1) and 36; Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 18 and 20(2)
AppellantNarayan N. More and ors.
RespondentState of Maharashtra Through the Secretary, Ministry of Labour, ;commissioner of Labour and Godrej I
Appellant AdvocateK.K. Singhvi, Sr. Counsel and ;S. Mahadeshwar, Adv., i/b., Ranjana Todankar, Adv.
Respondent AdvocateP.M. Palshikar, AGP for Respondent Nos. 1 and 2 and ;M.M. Varma, Adv., i/b., Rajesh Ghehani, Adv. for Respondent No. 3
Excerpt:
labour and industrial - illegal termination - representation of employee by recognised union - application of - section 20(2) (b) of maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (mrtu and pulp act) - petitionersemployees filed a suit for illegal termination against respondent no.3- employer before the labour commissioner - assistant labour commissioner rejected the suit on the ground that the petitioners being a member of the recognised union had to be represented through the union - hence, present petition - petitioners contended that the recognised union colluded in illegal termination of the petitioners by forcing them to sign the vrs scheme - held, section 20(2)(b) of the act not at all attracted in the present case in as much as the same does not apply to proceedings in which the legality or propriety of an order of dismissal/discharge/removal/retrenchment/termination of service/suspension of an employee is under consideration - in the present case, it was the contention of the petitioners that their services have been illegally terminated by the third respondent by forcibly obtaining their signatures on the forms of the said scheme - thus, petitioner's case was in respect of 'illegal termination of their services' - consequently, such case should not have been thrown out at the threshold by the assistant labour commissioner by relying on section 20(2)(b) of act, which has no application at all labour and industrial - illegal termination - representation of parties to dispute - application of - section 36 of mrtu and pulp act - held, the provision of section 36 of the said act spell out 'an entitlement' of a workman to be represented in any proceeding under these acts - 'an entitlement' of a workmen can not converted into 'a mandatory obligation' disabling' a workman from representing his own case individually on the sole ground that he must come through a recognised union, even if he is trying to make out a his grievance against the office bearers of the very same recognised union itself - therefore, section 36 of the said act had no applicability to the proceedings in issue before the assistant labour commissioner - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - having enjoyed the benefits of the scheme, the petitioners submitted a letter dated 23.9.2005 with the minister for labour and raised a dispute in regard to the said scheme in issue and sought for their reinstatement. the aforesaid findings and/or grounds from the impugned order thus clearly without jurisdiction or in excess of jurisdiction and therefore clearly unsustainable in law and in view of facts of this case. reported in (2008)illj1035bom .he submitted that this judgment squarely applies even to the controversy involved in the present petition and contended that the aforesaid findings of the assistant labour commissioner is clearly in the teeth of the ratio of this decision and is therefore unsustainable. 13. in our view the facts of the wyeth employees union (supra) case are clearly distinguishable from the facts of our case. the facts of that case narrated in the judgment will indicate that it was the contention of the workmen therein that a similar scheme like the said scheme was not framed or published. moreover, in our case admittedly the petitioners did receive monies in lump sum under the said scheme as promised and have continued to enjoy the benefits of the said scheme in as much as the petitioners have continued to receive monthly pension, in addition to the medical benefits without any demur.a.a. kumbhakoni, j.1. whether, in view of facts and circumstances of this case, a workman can be turned way from the entrance itself leading to the temple of justice, on the spacious ground that, he is not accompanied by the very same recognized union against the office bearers of which such a worker has a serious grievance to make in the court of law this being a very short question involved in this matter, by consent of all the parties we have heard this matter for final disposal at the admission stage itself. rule. rule made returnable forthwith. heard both sides at some length. 2. the 3rd respondent is a company which is having its industrial unit that works continuously 24 x 7, situate at vikhroli (east), mumbai 400 079. the employees i.e. the workmen work in shifts in the continuous industrial process that goes on at the establishment of the respondent no. 3. it has come on record that at the relevant time there were more than 323 workmen working at the aforesaid factory of the 3rd respondent. one bharatiya kamgar sena was a union of this workmen which was recognised union in the said factory for last several years. 3. the voluntary retirement scheme dated 12.4.2005, in issue, in the present proceedings, was floated by the 3rd respondent for its workmen. it is the case of the 3rd respondent that 323 workmen including the present petitioners who are 84 in number opted for the scheme. having enjoyed the benefits of the scheme, the petitioners submitted a letter dated 23.9.2005 with the minister for labour and raised a dispute in regard to the said scheme in issue and sought for their reinstatement. the assistant labour commissioner, mumbai, after conducting initial proceedings, by his order dated 13.12.2006, has held that the dispute raised by the petitioners cannot be deemed to be an industrial dispute under section 2a of the industrial disputes act, 1947 (hereinafter referred to as the said act for the sake of brevity). the petitioners therefore have filed this writ petition seeking to quash and set aside the impugned aforesaid order dated 13.12.2006 passed by the assistant labour commissioner and for further consequential reliefs to the effect that the government of maharashtra be directed to refer the aforesaid dispute, raised by the petitioners regarding termination of their services, for adjudication to the industrial tribunal. 4. in nutshell, the case of the petitioners is as under: the voluntary retirement scheme dated 12.4.2005 (hereinafter referred to as the said scheme for the sake of brevity) was kept open for receiving applications from the workmen by the 3rd respondent from 12.4.2005 to 26.4.2005. few workers voluntary accepted the said scheme. on the last date fixed for receiving application under the said scheme, workers were not allowed to leave the factory premises and were detained in the factory till 8 p.m. the workers were individually taken to the cabin of officers where they were threatened that if they do not accept the said scheme they will not get the benefit of even the said scheme as the factory was in any case going to be closed. the workers were also threatened that their wages will be stopped. some details in this regard are also set out and ultimately it is contended that the office bearers of the company and the office bearers aforesaid recognised union together targeted the workers one by one in a very aggressive manner and finally forced them to sign the application for the said scheme on 26.4.2005. it is contended that signatures of 300 workers were thus obtained by force. the allegation is thus that the 3rd respondent employer company and the aforesaid recognised union colluded in illegally terminating the services of the petitioners by forcing the petitioners to sign the application form of the said scheme. the grievance is that the petitioners were left isolated as the recognised union was acting at the behest of the 3rd respondent and were therefore constrained to address the aforesaid letter dated 23.9.2005 to the minister for labour raising a dispute in this regard seeking their reinstatement. 5. respondent has filed an affidavit in reply dated 2.4.2008 and also supplementary affidavit in reply dated 16.6.2008. the defense in short of the 3rd respondent is as under:protracted discussions with the aforesaid recognised union in presence of the committee members were held and a settlement dated 12.4.2005 was reached to introduce voluntary retirement scheme with very attractive benefits. the said scheme was introduced for the purpose of improving productivity, reducing costs, helping in proposed re-engineering of some manufacturing activities at vikhroli plant in order to enable the organisation to compete in the dynamic economic environment. the said scheme was displayed by the 3rd respondent on 12.4.2005 and the workmen were given a time of fortnight to consider and exercise their option of accepting the said scheme. total 323 workmen have accepted the said scheme between the period 12.4.2005 to 26.4.2005 on different dates. all the petitioners (84 workmen) applied on various dates and even those who were on leave tendered their applications at the time of office which is located near the gate of the factory. the contention that the workmen were detained etc. is denied by pointing out that all the petitioners were never present at the factory premises at one time and that they were working in shifts. a chart is produced in support of this contention showing the schedule of shift and timing of their entry and exit in the factory premises. the allegations as to compulsion etc. in obtaining signatures are denied by stamping them, as a creation of fertile imagination of the petitioners. it is therefore contended that apart from paying lump sum money under the said scheme, workmen have been given benefit of even of rs. 7,000/ per month for a period of five years or till the time of superannuation whichever is earlier. in addition to these benefits, they are also given medical claim policy reimbursement of rs. 2,500/-per year to each of them. it is emphasised that all the petitioners are continuing to collect pension without any demur. it is further contended that no letter of demand has been received either from the recognised union or from the workmen so far and that the workmen appear to be only in touch with the government. it is therefore submitted that the grievance of the workmen should not be entertained and considered and that impugned order of the assistant labour commissioner is justifiable.6. the assistant labour commissioner has also filed his affidavit dated 24.4.2008 supporting its decision impugned by the present petitioners. 7. a perusal of the impugned order demonstrates that the application of the petitioners has been rejected on following grounds:(a) bhartiya kamgar sena is a recognised union of the workmen in issue. (b) under proviso to section 36 of the said act and according to section 20(2)(b) of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971, (mrtu & pulp act for the sake of brevity) only the aforesaid recognised union can represent the workmen and that save and except the aforesaid recognised union no other union / person / committee of workers can represent workmen in an industrial dispute. (c) an agreement in respect of the said scheme has been entered into by the 3rd respondent union with the recognised union and that under section 18 of the mrtu & pulp act. it is binding on all the workmen. (d) the acceptance of the benefits of the said scheme by the workmen does not fall in any of the concepts of dismissal, discharge, removal, retrenchment, termination of service, suspension, and therefore the dispute raised by the workmen will not be covered by the term industrial dispute contemplated by provisions of section 2a of the said act. 8. the learned senior counsel appearing on behalf of the petitioners, in our opinion, correctly submitted that the first three aforesaid reasons i.e. (a) & (b) are ex facie unsustainable in law and in view of the facts of the case. the learned counsel drew our attention to the provisions of section 36 of the said act and that of section 20(2)(b) of the mrtu & pulp act. these provisions reads thus:section 36 : representation of parties.-(1) a workman who is a party to 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 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 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 association of employees 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 proceeding and [with the leave of the labour court, tribunal or national tribunal, as the case may be]]. section 20(2)(b) : no employee shall be allowed to appear or act or be allowed to be represented in any proceedings under the central act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through the recognised union; and the decision arrived at, or order made, in such proceeding shall be binding on all the employees in such undertaking; and accordingly, the provisions of the central act, that is to say, the industrial disputes act, 1947, xiv of 1947, shall stand amended in the manner and to the extent specified in schedule i. 9. the provision of section 36 of the said act spell out 'an entitlement' of a workman to be represented in any proceeding under these acts. the said section cannot be read to mean that a workmen cannot individually represent himself before the assistant labour commissioner in the proceedings in which the order impugned by present petition has been passed. an entitlement of a workmen can not converted into a mandatory obligation, disabling a workman from representing his own case individually on the sole ground that he must come through a recognised union, even if he is trying to make out a his grievance against the office bearers of the very same recognised union itself. the basic grievance of the petitioners before the labour commissioner and before this court is that the office bearers of the aforesaid recognized union by acting hand in glove with the officers and the employer, the 3rd respondent, have targeted, the workmen i.e. the petitioners very aggressively and have forced them to sign applications of the said scheme. in view of such allegations it would be unjustifiable to refuse to consider the case of the petitioners on the sole ground that they are not being represented by the recognised union i.e. the very union against whose office bearers such grievance is being made. in other words, a workman can not be prevented at the threshold itself from even seeking redressal of his such a grievance that he is trying to make out against the office bearers of the union on a ground that the very same union is not taking up his cause. otherwise the worker in such a case will be left without even a chance to try to make a grievance, irrespective of whatever worth it is. in view of the facts and circumstances of this case, we are therefore of the view that section 36 of the said act had no applicability to the proceedings in issue before the assistant labour commissioner. 10. in as much as section 20(2)(b) of the mrtu & pulp act is concerned, the same is also not at all attracted in the present case in as much as the same does not apply to proceedings in which the legality or propriety of an order of dismissal/discharge/removal/retrenchment/termination of service/suspension of an employee is under consideration. in the present case, it is the contention of the petitioners that their services have been illegally terminated by the 3rd respondent by forcibly obtaining their signatures on the forms of the said scheme. thus, the case of the petitioners is in respect of illegal termination of their services. consequently, such case should not have been thrown out at the threshold by the assistant labour commissioner by relying on the aforesaid section 20(2)(b) of mrtu & pulp act, which has no application at all. of course we will hasten to add that at this stage we can not prejudge the correctness or truthfulness of the such a claim that there is such a termination of service, if at all and if any, and further that the same was illegal or otherwise.11. the aforesaid third finding (c ) from the impugned order to the effect that the said scheme is binding on all the workmen of the 3rd respondent as the same was floated by way of an agreement entered into between the 3rd respondent, employer and the said recognised union by virtue of section 18 of the said act is concerned, suffice it to say that the same was recorded by the assistant labour commissioner in excess of his jurisdiction. the assistant labour commissioner should not have ventured to take upon himself the jurisdiction to try, entertain and decide the disputes sought to be raised by the petitioners i.e. the legality and validity of the said scheme, its binding nature on the petitioners, its legal implementation/enforcement etc. and in the process conclude that the said scheme was binding on the petitioners and therefore it was not open for them to make any grievance in that regard. the aforesaid findings and/or grounds from the impugned order thus clearly without jurisdiction or in excess of jurisdiction and therefore clearly unsustainable in law and in view of facts of this case. 12. the last finding and/or ground i.e. aforesaid (d) from the impugned order is to the effect that acceptance of benefits of the said scheme does not fall within the concept of dismissal/discharge/removal/retrenchment/termination of service/ suspension and that therefore disputes raised by the petitioners does not fall within the deemed provisions of section 2a of the said act. section 2a of the said act, reads thus:2a. dismissal, etc. of an individual workman to be deemed to be an industrial dispute.-where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual; workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. in this regard the learned senior counsel appearing on behalf of the petitioners strongly relied on the division bench judgment of this court delivered in the case of wyeth employees union v. araine orgachem pvt. ltd. reported in : (2008)illj1035bom . he submitted that this judgment squarely applies even to the controversy involved in the present petition and contended that the aforesaid findings of the assistant labour commissioner is clearly in the teeth of the ratio of this decision and is therefore unsustainable. 13. in our view the facts of the wyeth employees union (supra) case are clearly distinguishable from the facts of our case. the facts of that case narrated in the judgment will indicate that it was the contention of the workmen therein that a similar scheme like the said scheme was not framed or published. whereas, in the present case, admittedly the said scehme was published. secondly it was contended in that case that the signature of the workers were obtained on blank papers and that promised amounts were not paid. whereas, in the present case, admittedly all the workers including the petitioners did sign (though according to the petitioners such signatures were obtained forcibly) the forms of the said scheme. moreover, in our case admittedly the petitioners did receive monies in lump sum under the said scheme as promised and have continued to enjoy the benefits of the said scheme in as much as the petitioners have continued to receive monthly pension, in addition to the medical benefits without any demur. in our opinion, therefore, the judgment of the division bench delivered in the case of wyeth employees union (supra) on facts may not squarely apply to the present case. 14. however, we may set out herein the ratio laid down by the aforesaid judgment. in paragraph 25, after considering various judgments of the supreme court and this court, the principles in regard to the jurisdiction of appropriate government while acting under section 10(1) of the said act have been summarised as under:(1) when appropriate government exercises power under section 10(1) of the said act, it performs an administrative function. (2) while exercising power under section 10(1) of the said act, the appropriate government has to form an opinion whether an employee is a workman and whether an industrial dispute exists or not. (3) while forming the above mentioned opinion, the appropriate government cannot adjudicate the dispute itself on merits. (4) appropriate government's order under section 10(1) being an administrative order must be based on its subjective satisfaction and the subjective satisfaction must be founded on relevant and germane considerations. (5) it is permissible for the appropriate government to conduct a prima facie examination of the merits while acting under section 10(1) of the said act. however, the scope of that examination is limited and is circumscribed by the limits laid down by the supreme court. it has to form an opinion as to whether an employee is a workman, whether an industrial dispute exists or is apprehended but a full fledged detailed enquiry into the merits is not permissible. the appropriate government may however, have to decide whether claim is frivolous, belated, bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. if the impact of the claim on the general relations between the employer and employee in the region is likely to be adverse, the appropriate government may take into account in deciding whether reference should be made or not. beyond this, the appropriate government cannot travel. (6) order of the appropriate government under section 10(1) of the said act being an administrative order and not judicial or quasi judicial order, while entertaining a writ of mandamus against such an order, the court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons unless it appears that the appropriate government has taken into account any consideration which is irrelevant or foreign. 15. in paragraph 26 of the aforesaid judgment, following observations are made:26. the judgments cited by the parties in our considered opinion state that unilateral deposit of compensation by the employer may not suggest that the employees have accepted voluntary retirement snapping the employer and employee relationship, but where the employees without demur accept it and utilise it by spending it or investing it, they cannot later on challenge the scheme on the ground that they were compelled or forced to accept vrs compensation. however, where serious allegations of fraud and misrepresentation are made, the reference may have to be made. the status of the employee may also make a difference. for instance, in a. k. bindal's case (supra), the supreme court had before it officers of the companies. the supreme court observed that they were mature enough to weigh the pros and cons of the options and if they apply for vrs and take money they cannot contend that they were compelled to do so. but, in a given case, if the employees are illiterate and victims of deception and fraud, scales must tilt in their favour at least to the extend that they must be allowed to prove that fraud was practiced on them. such an inquiry cannot in the nature of things be conducted by the appropriate government while passing an administrative order under section 10(1) of the said act. in such cases reference will have to be made and the tribunal will have to step in. adjudication of such dispute can only be done by the tribunal and not by the appropriate government which is empowered to pass an administrative order. we are fortified in this view of ours by the unreported judgment of this court in philip's electronics india limited's case (supra)].16. in the light of the aforesaid observations and in view of the facts and circumstances of this case, it cannot be said that the dispute raised by the present petitioners is not an industrial dispute as contemplated by the provisions of the said act. in case if the contention of the petitioners that they were forced both by the officers of the said recognized union and the officer of the employer i.e. 3rd respondent to submit to the said scheme by obtaining their signatures on the form of the said scheme forcibly is correct, then certainly it will amount to illegal termination of services of the petitioners. in such a case it will be wholly unjustifiable to require the petitioners to come only and only through the aforesaid recognised union, which obviously is not going to permit them to raise any such disputes, as raising of the dispute of such a nature at the hands of the petitioners would mean, allowing the petitioners to make serious allegations against the office bearers of the said recognised union itself. in our view, therefore, none of the grounds and/or reasons and/or findings recorded by the assistant labour commissioner in the impugned order are sustainable in law and in view of the facts of the case. 17. it was contended on behalf of the respondents that the disputes raised by the petitioners vide their application dated 7.3.2006 (exhibit 'f' to the petition) was not raised by the petitioners individually but was raised on behalf of the petitioners by one godrej industries limited workers committee (vrs). it was therefore submitted by the learned counsel on behalf of the respondents that such a committee cannot represent the petitioners and it is only and only the aforesaid recognised union who can represent the petitioners. the same argument was stretched by further contending that the aforesaid judgment delivered by the division bench in the case of wyeth employees union(supra) will not apply to the present case also for the reason that the petition therein was filed by the recognised union unlike the present case where firstly the petition is filed by the workers individually and secondly such aforesaid unrecognised committee which has no existence in law was trying to represent the petitioners before the assistant labour commissioner. 18. in regard to this submission, we may only state that the representation made and the disputes raised by the petitioners could have been raised by each of the petitioners separately. if each of the petitioners could have raised separately and independently an identical dispute, we do not see any reason as to why such a dispute needs to be thrown out at the threshold only because it was collectively raised by all the petitioners i.e.84 in number, by forming the common action group in the form of the aforesaid committee. moreover, it is pertinent to note that all the 84 petitioners have filed this petition in their individual capacity. we are not thus impressed by the aforesaid contention advanced on behalf of the respondents in support of the impugned order. 19. though it is not at all necessary as and by way of abandon caution, we may state that we have not expressed herein any opinion as to whether the dispute sought to be raised by the petitioners has any substance or not. in law, if the assistant labour commissioner could not have tried, entertained and commented upon the truth and correctness of the case tried to be made out by way of the dispute, in issue, by the petitioners, certainly we cannot venture to go into the merits and demerits of the disputes tried to be raised by the petitioners and record something in that regard one way or the other. in other words, any observation made herein should not be considered as a reflection of any finding by us as to the truth or correctness of the claims made by either of the parties, more particularly the petitioners herein and it will be open for the tribunal on receiving reference to adjudicate upon the dispute so raised by the petitioners on its own merits, uninfluenced by this order. 20. in view of the facts, circumstances and the reasons set out herein above, the order passed by the assistant labour commissioner dated 13.12.2006 bearing no. dl/m.s.e/id/2006/n ward/w-25 is liable to be quashed and set aside. consequently, appropriate direction will have to be issued to the state of maharashtra for reconsideration of the application of the petitioners, for referring the dispute of the petitioners for adjudication to the industrial tribunal, in the light of the observations made hereinabove. hence, the order:order (1) this writ petition is partly allowed in the following terms. (2) order passed by the assistant labour commissioner (mumbai) dated 13th december, 2006 bearing no. dlc/m.s.e./id2006/n ward/w-25 is hereby quashed and set aside. (3) the original application filed by the petitioners dated 7th march 2006, in respect of which the aforesaid order dated 13th december 2006 was passed by the assistant labour commissioner (mumbai) is restored. (4) the government of maharashtra is directed to reconsider, in the light of the observations made in this judgment, the original application filed by the petitioners dated 7th march 2006 {in respect of which the aforesaid order dated 13th december 2006 was passed by the assistant labour commissioner (mumbai) } seeking to refer a dispute for adjudication to the industrial tribunal. (5) we direct the government of maharashtra to pass appropriate orders as aforesaid, by following the principles of natural justice, within six weeks time from today. needless to direct that the appropriate order, as aforesaid, be passed by giving reasons in its support. (6) rule made absolute accordingly, with no order as to costs.
Judgment:

A.A. Kumbhakoni, J.

1. Whether, in view of facts and circumstances of this case, a workman can be turned way from the entrance itself leading to the temple of justice, on the spacious ground that, he is not accompanied by the very same Recognized Union against the office bearers of which such a worker has a serious grievance to make in the court of law

This being a very short question involved in this matter, by consent of all the parties we have heard this matter for final disposal at the admission stage itself. Rule. Rule made returnable forthwith. Heard both sides at some length.

2. The 3rd respondent is a company which is having its Industrial unit that works continuously 24 x 7, situate at Vikhroli (East), Mumbai 400 079. The employees i.e. the workmen work in shifts in the continuous industrial process that goes on at the establishment of the respondent No. 3. It has come on record that at the relevant time there were more than 323 workmen working at the aforesaid factory of the 3rd respondent. One Bharatiya Kamgar Sena was a Union of this workmen which was recognised union in the said factory for last several years.

3. The Voluntary Retirement Scheme dated 12.4.2005, in issue, in the present proceedings, was floated by the 3rd respondent for its workmen. It is the case of the 3rd Respondent that 323 workmen including the present petitioners who are 84 in number opted for the Scheme. Having enjoyed the benefits of the Scheme, the petitioners submitted a letter dated 23.9.2005 with the Minister for Labour and raised a dispute in regard to the said scheme in issue and sought for their reinstatement. The Assistant Labour Commissioner, Mumbai, after conducting initial proceedings, by his Order dated 13.12.2006, has held that the dispute raised by the petitioners cannot be deemed to be an Industrial Dispute under Section 2A of The Industrial Disputes Act, 1947 (hereinafter referred to as the said Act for the sake of brevity). The petitioners therefore have filed this Writ Petition seeking to quash and set aside the impugned aforesaid order dated 13.12.2006 passed by the Assistant Labour Commissioner and for further consequential reliefs to the effect that the Government of Maharashtra be directed to refer the aforesaid dispute, raised by the Petitioners regarding termination of their services, for adjudication to the Industrial Tribunal.

4. In nutshell, the case of the petitioners is as under: The Voluntary Retirement Scheme dated 12.4.2005 (hereinafter referred to as the said Scheme for the sake of brevity) was kept open for receiving applications from the workmen by the 3rd respondent from 12.4.2005 to 26.4.2005. Few workers voluntary accepted the said Scheme. On the last date fixed for receiving application under the said Scheme, workers were not allowed to leave the factory premises and were detained in the factory till 8 p.m. The workers were individually taken to the cabin of Officers where they were threatened that if they do not accept the said Scheme they will not get the benefit of even the said Scheme as the factory was in any case going to be closed. The workers were also threatened that their wages will be stopped. Some details in this regard are also set out and ultimately it is contended that the office bearers of the company and the office bearers aforesaid recognised union together targeted the workers one by one in a very aggressive manner and finally forced them to sign the application for the said Scheme on 26.4.2005. It is contended that signatures of 300 workers were thus obtained by force. The allegation is thus that the 3rd Respondent employer company and the aforesaid recognised union colluded in illegally terminating the services of the petitioners by forcing the petitioners to sign the application form of the said Scheme. The grievance is that the petitioners were left isolated as the recognised union was acting at the behest of the 3rd Respondent and were therefore constrained to address the aforesaid letter dated 23.9.2005 to the Minister for Labour raising a dispute in this regard seeking their reinstatement.

5. Respondent has filed an affidavit in reply dated 2.4.2008 and also Supplementary affidavit in reply dated 16.6.2008. The defense in short of the 3rd Respondent is as under:

Protracted discussions with the aforesaid recognised union in presence of the Committee members were held and a settlement dated 12.4.2005 was reached to introduce Voluntary Retirement Scheme with very attractive benefits. The said Scheme was introduced for the purpose of improving productivity, reducing costs, helping in proposed re-engineering of some manufacturing activities at Vikhroli Plant in order to enable the organisation to compete in the dynamic economic environment. The said Scheme was displayed by the 3rd respondent on 12.4.2005 and the workmen were given a time of fortnight to consider and exercise their option of accepting the said Scheme. Total 323 workmen have accepted the said Scheme between the period 12.4.2005 to 26.4.2005 on different dates. All the petitioners (84 workmen) applied on various dates and even those who were on leave tendered their applications at the time of office which is located near the gate of the factory. The contention that the workmen were detained etc. is denied by pointing out that all the petitioners were never present at the factory premises at one time and that they were working in shifts. A chart is produced in support of this contention showing the Schedule of Shift and timing of their entry and exit in the factory premises. The allegations as to compulsion etc. in obtaining signatures are denied by stamping them, as a creation of fertile imagination of the petitioners. It is therefore contended that apart from paying lump sum money under the said Scheme, workmen have been given benefit of even of Rs. 7,000/ per month for a period of five years or till the time of superannuation whichever is earlier. In addition to these benefits, they are also given medical claim policy reimbursement of Rs. 2,500/-per year to each of them. It is emphasised that all the petitioners are continuing to collect pension without any demur. It is further contended that no letter of demand has been received either from the recognised union or from the workmen so far and that the workmen appear to be only in touch with the Government. It is therefore submitted that the grievance of the workmen should not be entertained and considered and that impugned order of the Assistant Labour Commissioner is justifiable.

6. The Assistant Labour Commissioner has also filed his Affidavit dated 24.4.2008 supporting its decision impugned by the present petitioners.

7. A perusal of the impugned order demonstrates that the application of the petitioners has been rejected on following grounds:

(a) Bhartiya Kamgar Sena is a recognised union of the workmen in issue.

(b) Under Proviso to Section 36 of the said Act and according to Section 20(2)(b) of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (MRTU & PULP Act for the sake of brevity) only the aforesaid recognised union can represent the workmen and that save and except the aforesaid recognised union no other union / person / committee of workers can represent workmen in an industrial dispute.

(c) An agreement in respect of the said Scheme has been entered into by the 3rd respondent union with the recognised union and that under Section 18 of the MRTU & PULP Act. it is binding on all the workmen.

(d) The acceptance of the benefits of the said scheme by the workmen does not fall in any of the concepts of dismissal, discharge, removal, retrenchment, termination of service, suspension, and therefore the dispute raised by the workmen will not be covered by the term Industrial Dispute contemplated by provisions of Section 2A of the said Act.

8. The learned Senior Counsel appearing on behalf of the petitioners, in our opinion, correctly submitted that the first three aforesaid reasons i.e. (a) & (b) are ex facie unsustainable in law and in view of the facts of the case. The learned Counsel drew our attention to the provisions of Section 36 of the said Act and that of Section 20(2)(b) of the MRTU & PULP Act. These provisions reads thus:

Section 36 : Representation of parties.-(1) A workman who is a party to 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 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 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 association of employees 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 proceeding and [with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be]].

Section 20(2)(b) : No employee shall be allowed to appear or act or be allowed to be represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through the recognised union; and the decision arrived at, or order made, in such proceeding shall be binding on all the employees in such undertaking; and accordingly, the provisions of the Central Act, that is to say, the Industrial Disputes act, 1947, XIV of 1947, shall stand amended in the manner and to the extent specified in Schedule I.

9. The provision of Section 36 of the said Act spell out 'an entitlement' of a workman to be represented in any proceeding under these Acts. The said Section cannot be read to mean that a workmen cannot individually represent himself before the Assistant Labour Commissioner in the proceedings in which the order impugned by present petition has been passed. An entitlement of a workmen can not converted into a mandatory obligation, disabling a workman from representing his own case individually on the sole ground that he must come through a recognised union, even if he is trying to make out a his grievance against the office bearers of the very same recognised union itself.

The basic grievance of the Petitioners before the Labour Commissioner and before this Court is that the office bearers of the aforesaid recognized union by acting hand in glove with the officers and the employer, the 3rd Respondent, have targeted, the workmen i.e. the petitioners very aggressively and have forced them to sign applications of the said Scheme. In view of such allegations it would be unjustifiable to refuse to consider the case of the petitioners on the sole ground that they are not being represented by the recognised union i.e. the very Union against whose office bearers such grievance is being made. In other words, a workman can not be prevented at the threshold itself from even seeking redressal of his such a grievance that he is trying to make out against the office bearers of the union on a ground that the very same union is not taking up his cause. Otherwise the worker in such a case will be left without even a chance to try to make a grievance, irrespective of whatever worth it is. In view of the facts and circumstances of this case, we are therefore of the view that Section 36 of the said Act had no applicability to the proceedings in issue before the Assistant Labour Commissioner.

10. In as much as Section 20(2)(b) of the MRTU & PULP Act is concerned, the same is also not at all attracted in the present case in as much as the same does not apply to proceedings in which the legality or propriety of an order of dismissal/discharge/removal/retrenchment/termination of service/suspension of an employee is under consideration. In the present case, it is the contention of the petitioners that their services have been illegally terminated by the 3rd respondent by forcibly obtaining their signatures on the forms of the said Scheme. Thus, the case of the petitioners is in respect of illegal termination of their services. Consequently, such case should not have been thrown out at the threshold by the Assistant Labour Commissioner by relying on the aforesaid Section 20(2)(b) of MRTU & PULP Act, which has no application at all. Of course we will hasten to add that at this stage we can not prejudge the correctness or truthfulness of the such a claim that there is such a termination of service, if at all and if any, and further that the same was illegal or otherwise.

11. The aforesaid third finding (c ) from the impugned order to the effect that the said Scheme is binding on all the workmen of the 3rd respondent as the same was floated by way of an agreement entered into between the 3rd respondent, employer and the said recognised union by virtue of Section 18 of the said Act is concerned, suffice it to say that the same was recorded by the Assistant Labour Commissioner in excess of his jurisdiction. The Assistant Labour Commissioner should not have ventured to take upon himself the jurisdiction to try, entertain and decide the disputes sought to be raised by the petitioners i.e. the legality and validity of the said scheme, its binding nature on the petitioners, its legal implementation/enforcement etc. and in the process conclude that the said Scheme was binding on the petitioners and therefore it was not open for them to make any grievance in that regard. The aforesaid findings and/or grounds from the impugned order thus clearly without jurisdiction or in excess of jurisdiction and therefore clearly unsustainable in law and in view of facts of this case.

12. The last finding and/or ground i.e. aforesaid (d) from the impugned order is to the effect that acceptance of benefits of the said Scheme does not fall within the concept of dismissal/discharge/removal/retrenchment/termination of service/ suspension and that therefore disputes raised by the petitioners does not fall within the deemed provisions of Section 2A of the said Act. Section 2A of the said Act, reads thus:

2A. Dismissal, etc. of an individual workman to be deemed to be an industrial dispute.-Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual; workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

In this regard the learned Senior Counsel appearing on behalf of the petitioners strongly relied on the Division Bench judgment of this Court delivered in the case of Wyeth Employees Union v. Araine Orgachem Pvt. Ltd. Reported in : (2008)ILLJ1035Bom . He submitted that this judgment squarely applies even to the controversy involved in the present petition and contended that the aforesaid findings of the Assistant Labour Commissioner is clearly in the teeth of the ratio of this decision and is therefore unsustainable.

13. In our view the facts of the Wyeth Employees Union (supra) case are clearly distinguishable from the facts of our case. The facts of that case narrated in the judgment will indicate that it was the contention of the workmen therein that a similar scheme like the said Scheme was not framed or published. Whereas, in the present case, admittedly the said Scehme was published. Secondly It was contended in that case that the signature of the workers were obtained on blank papers and that promised amounts were not paid. Whereas, in the present case, admittedly all the workers including the petitioners did sign (though according to the petitioners such signatures were obtained forcibly) the forms of the said Scheme. Moreover, in our case admittedly the petitioners did receive monies in lump sum under the said Scheme as promised and have continued to enjoy the benefits of the said Scheme in as much as the petitioners have continued to receive monthly pension, in addition to the medical benefits without any demur. In our opinion, therefore, the judgment of the Division Bench delivered in the case of Wyeth Employees Union (supra) on facts may not squarely apply to the present case.

14. However, we may set out herein the ratio laid down by the aforesaid judgment. In paragraph 25, after considering various judgments of the Supreme Court and this Court, the principles in regard to the jurisdiction of appropriate government while acting under Section 10(1) of the said Act have been summarised as under:

(1) When appropriate Government exercises power under Section 10(1) of the said Act, it performs an administrative function.

(2) While exercising power under Section 10(1) of the said Act, the appropriate Government has to form an opinion whether an employee is a workman and whether an industrial dispute exists or not.

(3) While forming the above mentioned opinion, the appropriate Government cannot adjudicate the dispute itself on merits.

(4) Appropriate Government's order under Section 10(1) being an administrative order must be based on its subjective satisfaction and the subjective satisfaction must be founded on relevant and germane considerations.

(5) It is permissible for the appropriate Government to conduct a prima facie examination of the merits while acting under Section 10(1) of the said Act. However, the scope of that examination is limited and is circumscribed by the limits laid down by the Supreme Court. It has to form an opinion as to whether an employee is a workman, whether an industrial dispute exists or is apprehended but a full fledged detailed enquiry into the merits is not permissible. The appropriate Government may however, have to decide whether claim is frivolous, belated, bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. If the impact of the claim on the general relations between the employer and employee in the region is likely to be adverse, the appropriate Government may take into account in deciding whether reference should be made or not. Beyond this, the appropriate Government cannot travel.

(6) Order of the appropriate Government under Section 10(1) of the said Act being an administrative order and not judicial or quasi judicial order, while entertaining a writ of mandamus against such an order, the Court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons unless it appears that the appropriate Government has taken into account any consideration which is irrelevant or foreign.

15. In paragraph 26 of the aforesaid Judgment, following observations are made:

26. The judgments cited by the parties in our considered opinion state that unilateral deposit of compensation by the employer may not suggest that the employees have accepted voluntary retirement snapping the employer and employee relationship, but where the employees without demur accept it and utilise it by spending it or investing it, they cannot later on challenge the scheme on the ground that they were compelled or forced to accept VRS compensation. However, where serious allegations of fraud and misrepresentation are made, the reference may have to be made. The status of the employee may also make a difference. For instance, in A. K. Bindal's case (supra), the Supreme Court had before it officers of the companies. The Supreme Court observed that they were mature enough to weigh the pros and cons of the options and if they apply for VRS and take money they cannot contend that they were compelled to do so. But, in a given case, if the employees are illiterate and victims of deception and fraud, scales must tilt in their favour at least to the extend that they must be allowed to prove that fraud was practiced on them. Such an inquiry cannot in the nature of things be conducted by the appropriate Government while passing an administrative order under Section 10(1) of the said Act. In such cases reference will have to be made and the Tribunal will have to step in. Adjudication of such dispute can only be done by the Tribunal and not by the appropriate Government which is empowered to pass an administrative order. We are fortified in this view of ours by the unreported judgment of this Court in Philip's Electronics India Limited's case (supra)].

16. In the light of the aforesaid observations and in view of the facts and circumstances of this case, it cannot be said that the dispute raised by the present petitioners is not an Industrial Dispute as contemplated by the provisions of the said Act. In case if the contention of the petitioners that they were forced both by the officers of the said recognized union and the officer of the employer i.e. 3rd respondent to submit to the said scheme by obtaining their signatures on the form of the said Scheme forcibly is correct, then certainly it will amount to illegal termination of services of the petitioners. In such a case it will be wholly unjustifiable to require the petitioners to come only and only through the aforesaid recognised union, which obviously is not going to permit them to raise any such disputes, as raising of the dispute of such a nature at the hands of the petitioners would mean, allowing the petitioners to make serious allegations against the office bearers of the said recognised union itself.

In our view, therefore, none of the grounds and/or reasons and/or findings recorded by the Assistant Labour Commissioner in the impugned order are sustainable in law and in view of the facts of the case.

17. It was contended on behalf of the respondents that the disputes raised by the petitioners vide their application dated 7.3.2006 (Exhibit 'F' to the petition) was not raised by the petitioners individually but was raised on behalf of the petitioners by one Godrej Industries Limited Workers Committee (VRS). It was therefore submitted by the learned Counsel on behalf of the respondents that such a Committee cannot represent the petitioners and it is only and only the aforesaid recognised union who can represent the petitioners. The same argument was stretched by further contending that the aforesaid judgment delivered by the Division Bench in the case of Wyeth Employees Union(supra) will not apply to the present case also for the reason that the petition therein was filed by the recognised union unlike the present case where firstly the petition is filed by the workers individually and secondly such aforesaid unrecognised Committee which has no existence in law was trying to represent the petitioners before the Assistant Labour Commissioner.

18. In regard to this submission, we may only state that the representation made and the disputes raised by the petitioners could have been raised by each of the petitioners separately. If each of the petitioners could have raised separately and independently an identical dispute, we do not see any reason as to why such a dispute needs to be thrown out at the threshold only because it was collectively raised by all the petitioners i.e.84 in number, by forming the Common Action Group in the form of the aforesaid Committee. Moreover, it is pertinent to note that all the 84 petitioners have filed this petition in their individual capacity. We are not thus impressed by the aforesaid contention advanced on behalf of the respondents in support of the impugned order.

19. Though it is not at all necessary as and by way of abandon caution, we may state that we have not expressed herein any opinion as to whether the dispute sought to be raised by the petitioners has any substance or not. In law, if the Assistant Labour Commissioner could not have tried, entertained and commented upon the truth and correctness of the case tried to be made out by way of the dispute, in issue, by the petitioners, certainly we cannot venture to go into the merits and demerits of the disputes tried to be raised by the petitioners and record something in that regard one way or the other. In other words, any observation made herein should not be considered as a reflection of any finding by us as to the truth or correctness of the claims made by either of the parties, more particularly the petitioners herein and it will be open for the Tribunal on receiving Reference to adjudicate upon the dispute so raised by the petitioners on its own merits, uninfluenced by this order.

20. In view of the facts, circumstances and the reasons set out herein above, the order passed by the Assistant Labour Commissioner dated 13.12.2006 bearing No. DL/M.S.E/ID/2006/N Ward/W-25 is liable to be quashed and set aside. Consequently, appropriate direction will have to be issued to the State of Maharashtra for reconsideration of the application of the petitioners, for referring the dispute of the petitioners for adjudication to the Industrial Tribunal, in the light of the observations made hereinabove. Hence, the order:

ORDER

(1) This Writ Petition is partly allowed in the following terms.

(2) Order passed by the Assistant Labour Commissioner (Mumbai) dated 13th December, 2006 bearing No. DLC/M.S.E./ID2006/N Ward/W-25 is hereby quashed and set aside.

(3) The original application filed by the Petitioners dated 7th March 2006, in respect of which the aforesaid order dated 13th December 2006 was passed by the Assistant Labour Commissioner (Mumbai) is restored.

(4) The Government of Maharashtra is directed to reconsider, in the light of the observations made in this Judgment, the original application filed by the Petitioners dated 7th March 2006 {in respect of which the aforesaid order dated 13th December 2006 was passed by the Assistant Labour Commissioner (Mumbai) } seeking to refer a dispute for adjudication to the Industrial Tribunal.

(5) We direct the Government of Maharashtra to pass appropriate orders as aforesaid, by following the principles of natural justice, within six weeks time from today. Needless to direct that the appropriate order, as aforesaid, be passed by giving reasons in its support.

(6)

Rule made absolute accordingly, with no order as to costs.