Hindustan Lever Limited Vs. the State of Jharkhand and ors. - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - learned tribunal failed to take into consideration that the workmen had accepted voluntary retirement and the benefits to be given under the vrs. earlier on two occasions, the petitions/preliminary objection regarding maintainability, were rejected by order dated 15th july, 1997 and 17th november, 1997. it was clearly held that the said issue shall also be considered along with other issues at the time of final adjudication of the reference. the order is well considered, legal and proper and the instant writ petition, challenging the impugned order, is wholly frivolous and is liable to be dismissed with cost. i find force in the submission of the learned counsel for the respondents that the order of the learned tribunal is well reasoned and there is no infirmity.narendra nath tiwari, j.1. the petitioner, in this writ petition, has prayed for quashing the order dated 16th september, 2006 (annexure-1), whereby the petitioner's application before the learned industrial tribunal, praying to drop the proceeding of ref. case no. 2 of 2003, has been rejected. the petitioner has further prayed for quashing the entire ref. case no. 2 of 2003.2. the concerned workmen were the employees of tata oil mills company limited, jasidih (for short tomco). there was settlement between the management and the workmen of tomco, regarding their pay scale and other benefits, on 5th june, 1987. the settlement was for three years to end by 4th june, 1990. tomco employees union terminated the settlement by letter dated 2nd april, 1990 during the continuation of the period of settlement. they placed demands for revision of pay scale etc., which was covered by the said settlement. the demand was in contravention of section 19 of the industrial disputes act. the production was stopped from may, 1993.3. subsequently, tomco merged with hindustan lever limited (the petitioner) with effect from 20th december, 1994. the same was thereafter closed down in 1996. the management had accepted voluntary retirement of all the workmen and made payment according to voluntary retirement scheme (for short vrs) to all of them.4. in the meantime, an industrial dispute was raised by the concerned workmen. the appropriate government by notification dated 30th september, 1995 referred the dispute in the following term:whether the benefits of revised pay scale according to the demand letter dated 2nd april 1990 of the tomco employees union, jasidih being not given to the workmen of the then m/s. tata oil mills company, jasidhi, now m/s. hindustan lever ltd., jasidih is proper. if not, what relief the workmen are entitled to.5. the petitioner objected to the said reference by petition dated 22nd june, 2006. the petitioner had contended that the proceeding is not maintainable and the same is without jurisdiction. the workmen had taken voluntary retirement and accepted the benefits of the same. they ceased to be the workmen of the company. there is no relationship of employer-employee between the management and the workmen. they are not the workmen within the meaning of section 2(s) of the industrial disputes act. there is no scope for raising any dispute and the reference of the dispute is wholly without jurisdiction.6. learned tribunal by the impugned order (annexure-1) rejected the petitioner's application, holding that the question of maintainability was earlier raised. it was held that the said question shall be decided at the time of final adjudication along with other issues involved in the reference.7. it has been contended on behalf of the petitioner that the impugned order is vitiated and illegal on account of non-application of mind on the facts and the provisions of law. learned tribunal failed to take into consideration that the workmen had accepted voluntary retirement and the benefits to be given under the vrs. now they cannot challenge the same, by raising a dispute. the petitioner referred to and relied on the decisions in tata iron steel co. ltd. v. gyanendra sahay 2995(1) jcr 525 (jhr) and gyanendra sahay v. tata iron and steel co. ltd. : (2006)iiillj356sc . it has been contended that if an employee opts for voluntary retirement, he cannot at a later stage claim the benefits of pay revision etc. the reliance has been also placed on the decisions of the supreme court in a.k. bindal and anr. v. unioin of india and ors. 2003 lab. i.c 2140 and hec voluntary retired employees welfare society and anr. v. heavy engineering corporation ltd. and ors. : (2006)iillj245sc .8. it has been submitted that in view of the said decisions of the hon'ble supreme court, the workmen having once opted for vrs cannot claim revision of pay. they also cannot raise the dispute regarding the same. the reference is, thus, vitiated in law and is not maintainable.9. the writ petition has been contested by the concerned workmen. in the counter affidavit filed on their behalf, it has been stated, inter alia, that the writ petition is wholly misconceived and the same is not maintainable and is liable to be dismissed. the management had raised the same issue of maintainability of the reference, in question, before the patna high court in c.w.j.c. no. 159 of 1998. the petitioner from time to time has been filing frivolous writ petitions, raising the same issue again and again. twice earlier, the petitioner moved before the tribunal for the same prayer and was rejected. thereafter, he had filed the said writ petition before the patna high court, which was dismissed. it was observed that the petitioner had not agitated against the order dated 15th april, 1997 passed by the learned tribunal. the petitioner was not justified in moving again by filing a petition raising preliminary objection, which was earlier rejected by the tribunal with a direction that the same will be considered in answering the reference itself. the second attempt on behalf of the petitioner can only said to be just to delay the disposal of the reference itself.10. it has been further submitted that reference was made in the year 1995. the petitioner on the one pretext or the other has been lingering the same since then. earlier on two occasions, the petitions/preliminary objection regarding maintainability, were rejected by order dated 15th july, 1997 and 17th november, 1997. it was clearly held that the said issue shall also be considered along with other issues at the time of final adjudication of the reference.11. several witnesses were already examined on behalf of the workmen. after the examination-in-chief of the workmen's witnesses no. 4, the management did not cross examine the witness. thereafter, the said witness was discharged by order dated 28th september, 2005. a prayer was then made on 20lh october, 2005 by the management for recalling the said workmen's witness no. 4. prayer was allowed. the said workmen's witness appeared on number of dates, but instead of cross examining the said witness, the management repeatedly sought adjournment by filing petition on one count or the other. the management has, thus, adopted all means to unnecessarily linger the proceeding and delay the conclusion.12. it has further been submitted on behalf of the respondents that the reference to the learned tribunal by the appropriate government is wholly legal and valid. learned tribunal has passed the impugned order after considering all the points raised before it. the order is well considered, legal and proper and the instant writ petition, challenging the impugned order, is wholly frivolous and is liable to be dismissed with cost.13. i have heard learned counsel for the parties and considered the contentions and submissions made by them. i have also considered the facts, materials and documents brought on record. the petitioner is aggrieved by the order dated 16th september, 2006 (annexure-1), whereby the petitioner's prayer for dropping the proceeding ns not maintainable has been rejected. learned tribunal has considered the points raised before him. from the record, the tribunal found that earlier while the case was before the presiding officer, industrial tribunal, patna, the said prayer of the management for deciding the preliminary point regarding the maintainability of the reference was rejected by order dated 15th april, 1997. again, another petition was filed before the presiding officer, industrial tribunal, patna on 25th june, 1997. by detailed order dated 17th november, 1997, the said petition was rejected. it was observed that all the points, including preliminary issue of maintainability, will be heard and decided at the time of final adjudication. learned tribunal on that basis has held that their petition with the same prayer cannot be entertained. learned tribunal has further considered that though the workmen's witnesses were examined, the management got adjournment time and again for cross examining the witnesses. the question of maintainability raised by the petitioner has been considered and was directed to decide the same along with other issues at the time of final adjudication of the reference. i find force in the submission of the learned counsel for the respondents that the order of the learned tribunal is well reasoned and there is no infirmity.14. i, therefore, find no ground made out to entertain this writ petition.the decisions referred to and relied upon on behalf of the petitioner in tata iron steel co. ltd. v. gyanendra sahay, gyanendra sahay v. tata iron and steel co. ltd., a.k. bindal and hec voluntary retired employees welfare society and anr. (supra) have been rendered on different facts and circumstances and the same have got no application to the facts of the instant case.15. for the reasons aforesaid, i find no merit in the case. this writ petition is, accordingly, dismissed.