1 W.P. 2600/1991 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2600 OF 1991 Godavari Sugar Mills Limited Laxmiwadi, Tq. Kopergaon, Dist. Ahmednagar. .... PETITIONER VERSUS 1. Jagannath Shankar Rupavate R/o : Laxmiwadi, Tq. Kopergaon, Dist. Ahmednagar and 41 others. 2. The State of Maharashtra 3. Kopergaon Sakhar Karkhana Kamgar Sabha, Sakharwadi Tq. Kopergaon, Dist. Ahmednagar. 4. P.A. Umrikar Presiding Officer, First Labour Court at Ahmednagar. ..... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. B.B.Yenge , Advocate for the petitioner. Mr. Deepak Changede, Advocate for respondent no. 1. -------------------------------------------------------------------------------------------------------- 2 W.P. 2600/1991 - ( J ) CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 30/07/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner takes exception to the Judgment of the Presiding Officer, Labour Court, Ahmednagar dated 19/6/1991, thereby allowing the application of the present respondent no. 1 ( group of 42 employees ) filed U/s 33 (c) (2) of the Industrial Disputes Act, 1947. 2. The respondents herein had filed a Complaint before the Labour Court, Ahmednagar for computing their benefits in terms of money, which is allegedly due from the opponent i.e. the present petitioner, who is their employer, for the period from 15/2/1986 to 7/4/1988. 3. The present petitioner is the employer of the present respondent no. 1, which is group of 42 Ex-employees working at Laxmiwadi Factory. Respondent no. 3 is the registered Trade Union and is a representative and approved Union under the provisions of the Bombay Industrial Relations Act, 1946, in the local area of Kopergaon Taluka. According to the petitioner, settlement had been arrived at between 3 W.P. 2600/1991 - ( J ) respondent no. 3 – Union and the petitioner in respect of 1500 employees, which was placed before the Apex Court. As per the said settlement, the parties have acted upon. Payments have been made to the employees as per the said settlement. Out of 1500 employees, only these 42 employees have presented the petition U/s 33 (c) (2), all other employees have accepted the settlement. According to the petitioner, it has deposited the amount as per the settlement. 4. Mr. Yenge, the learned counsel for the petitioner canvassed before me following propositions - (i) The respondent no. 3, which is a registered Union, has entered into the settlement on behalf of all the employees. The said settlement is also registered as is required under the Statute and the same would be binding on the employees. For the said purpose, relies on the Judgment of this Court in the case of Bombay Gas Co. Ltd. V/s G.S. Baj & Oths. Reported in 2008 (Supplementary) – Bombay Cases Reporter – 753, so also the Judgment of the Apex Court in the case of Shramik Utkarsha Sabha V/s Raymond Woolen Mills Ltd. & Ors. and the case of Santuram Khudai V/s Kimatrai Printers, Processors and others. (ii) The Labour Court did not have the jurisdiction to entertain the 4 W.P. 2600/1991 - ( J ) application in view of the fact that earlier the applicants had moved Civil Misc. Petition before the Apex Court for impleading them as party. The same was rejected on the basis of the said settlement/agreement. (iii) The Labour Court failed to consider that once the settlement has been arrived at with the Union and out of 1500 more than 1450 employees have accepted the same, it would be binding on the respondent. (iv) As per the settlement, the services of the employees came to an end w.e.f. 8/4/1988. The present respondents – employees had challenged the same before the Industrial Court, Ahmednagar. The same was dismissed. The said rejection was confirmed by the High Court in Writ Petition No. 4667 of 2003 and even up to the Apex Court. The present respondents – employees are also bound by the said settlement. 5. Mr. Changede, the learned counsel for the respondents – employees strenuously contended that, (i) The said settlement is no settlement in view of Section 3, 35 and 42 of the Bombay Industrial Relations Act. (ii) The Apex Court had not examined the legality of the settlement. 5 W.P. 2600/1991 - ( J ) As such, it was open for the Labour Court to examine the legality. (iii) Respondent no. 3 – Union does not have authority to enter into settlement with regard to the individual rights and against the interest of the employees. (iv) Right of wages is a right given by the Statute to every individual and as such the respondent – Union could not have entered into settlement restricting the wages. The learned counsel relied on the Judgment of this Court in the case of Ibrahim Hanif Mulani V/s General Manager, Walchand Nagar Industries, Ltd., Satara & Anr. Reported in 2002 LLR – 743. 6. Before adverting to the rival contentions, it would be appropriate to reproduce the relevant terms and conditions of the said settlement which reads thus, i) It is agreed between the parties that all the employees of Lakshmiwadi shall be deemed to have resigned from their services on and from 8th April, 1988 which would be the deemed closure date of Lakshmiwadi factory of GSM ( this would apply in cases of such of the employees who have not tendered their resignations earlier than 8/4/1988 ). 6 W.P. 2600/1991 - ( J ) ii) The employees who have so far not been paid gratuity shall be paid gratuity on the basis that they have deemed to have resigned from the services of Lakshmiwadi factory on and from 8th April 1988 if otherwise eligible in accordance with the payment of Gratuity Act. Iii) The permanent employees have already been paid 50 % of the wages for the period from 16th February, 1986 to 15th December, 1986 and nothing is due and payable to them towards this period either by way of wages or increments or variable dearness allowance or bonus or otherwise any further amounts. Similarly, seasonal employees have been paid 50 % of the Retention Allowance for the period up to 15/2/1986 and nothing is due and payable to them up to this period either by way of Retention Allowance or increments or dearness allowance or bonus or otherwise any further amounts. iv) For the period from 16th December, 1986 to 8th April, 1988 or the dates of their respective resignations, whichever is earlier, the permanent employee will be paid by GSM (without prejudice to GSM’s contention that it does not admit any liability and reserves its rights to get the amounts reimbursed from the State of Maharashtra ) only an amount equivalent to the amount of 50 % ( fifty per cent ) of the wages ( being the wages on 7 W.P. 2600/1991 - ( J ) the basis whereof amounts as per the aforesaid order dated 22/23-4-1987 passed by the Supreme Court of India ) were paid i.e. on the basis of December, 1986 salary ( but nothing further by way of or towards any other benefit that might be said to have been accrued to the employees for the aforesaid period in the form of Provident Fund – whether employers’ contribution or employee’s contribution variable dearness allowance or increased allowance or increment or any other allowance or otherwise ). The seasonal employees also will likewise be paid 50 % of the amount equivalent to the amount of retention allowance for the period 16th February, 1986 to 8th April, 1988 or the dates of their respective resignation whichever is earlier, being the Retention allowance on the basis whereof the amount as per the aforesaid order dated 8/4/1986 passed by the Supreme Court of India were paid i.e. on the basis of April, 1986 Retention Allowance but nothing further by way of or towards any other benefit that might be said to have been accrued to the employees for the aforesaid period in the form of Provident Fund – whether employers’ contribution or employees contribution – variable dearness allowance or increased allowance or any other allowance or otherwise. These amounts have been quantified at Rs. 8 W.P. 2600/1991 - ( J ) 14.75 Lacs in respect of permanent employees and at Rs. 9.00 Lacs in respect of seasonal employees ( both aggregating to Rs. 23.75 Lacs ) which will be paid as stated hereafter. v) These payments shall be made on a time- bound programme within 30 days from the date of registration of this Agreement and the disposal of the above matters by the Supreme Court and the GSM’s Bank, Bank of India, making funds available for the purpose of such payment, whichever is later. Upon these payments being made, none of the employees/workmen will have any claim or demand whatsoever against GSM. vi) From the lump sum amount payable to the employees under Clause (iv), an amount of 10 % therefrom shall be deducted towards KTSKS’s donation to defray the legal expenses incurred by it and the amount so deducted shall be handed over to the KTSKS by cheque. Vii) The petitioner Union agrees not to obstruct the removal of Plant and machinery. 7. It is not disputed that the settlement/agreement was arrived at and filed between respondent no. 3 and the petitioner before the Apex Court and in terms of the said settlement, the petition was disposed off. In 9 W.P. 2600/1991 - ( J ) the said petition before the Apex Court , the present respondent no. 1 employees had filed an application for impleading them as parties claiming the following relief as prayer clause ‘ C ’. Prayer ( c) of the said CMP No. 14127 of 1989, which being relevant, is reproduced below : “ ( C ) Direct that applicants herein be paid their outstanding dues i.e. 50 % salary from 16/4/1986 to 15/12/1986, full salary from 16/12/1986 up to date, bonus for the year 1985 – 86 up to date, arrears on account of difference in the salaries paid and wages fixed by the Wage Board from 1984-85 onwards, leave salary and other dues under the law ”. 8. The Apex Court dismissed the said application CMP No. 14127 of 1989 was disposed of by the Hon’ble Supreme Court of India on 16th April, 1990 by passing the following order : “ This is a petition by 38 workmen who seek certain reliefs. The Management has already agreed to give relief to all the workmen including these 38. That agreement has been reached with the representative Union. C.M.P. is, therefore, dismissed ” . 9. It is also not disputed that as per the said settlement, services 10 W.P. 2600/1991 - ( J ) of the respondents employees came to an end on 8/4/1988. They had filed the petition before the Labour Court contending that as per the settlement, their services can not come to an end. The settlement is not binding on them The Labour Court dismissed their application, against which they preferred an Appeal before the Industrial Court. The Industrial Court also dismissed the Appeal. The respondents thereafter filed Writ Petition before this Court against the Judgment of the Industrial Court, bearing Writ Petition No. 4667 of 2003. The said Writ Petition was also dismissed by making following observations : “ 3. Heard Mr. Upadhya and Mr. Navandar. The petitioners ( 37 workers ) invoked jurisdiction of Industrial Court, Ahmednagar by filing instant appeal. The learned Member of Industrial Court, upon perusing the documents including settlement with the representative union, has concluded that barring these 37 persons, all other employees have accepted benefits under the settlement. A finding of fact has been recorded that the settlement is fair and has been acted upon. Similarly, the factory is not functioning since 1989. 4. The Labour Court has also allowed an application U/s 33 ( c ) ( 2 ) of the Industrial Disputes Act, 1947. That order is under challenge 11 W.P. 2600/1991 - ( J ) at the instance of management and a writ petition is admitted in this Court. Mr. Uipadhye’s submission is that this petition be tagged along with that petition. However, after hearing parties and perusing the record, in my opinion, entertaining this petition would mean permitting petitioners to reopen issues which are concluded by a settlement which has been arrived at with the representative union. Additionally, affidavit- in-reply filed by respondent no. 1 demonstrates that as per the terms of settlement, services of all employees including present petitioners came to an end on 8th April, 1988. The 37 employees in question did not succeed in their challenge to the settlement when it was approved by the Hon’ble Supreme Court. They pointed out that Civil Miscellaneous Petition No. 14127 of 1989 filed by petitioners was dismissed. These 37 employees have also accepted benefits of settlement. In my view, once the settlement has been approved right up to Hon’ble Supreme Court, the Industrial Court was in no error in refusing the relief claimed by the petitioners in the instant appeal. There is no error apparent on the face of record or perversity so as to call for interference under Articles 226 and 227 of Constitution of India ”. 10. The said order of the High Court was challenged before the Apex 12 W.P. 2600/1991 - ( J ) Court. The Special Leave Petition filed before the Apex Court also came to be dismissed. 11. It would be seen that earlier when the settlement was filed before the Apex Court, the present respondents – employees had made an application in the year 1989 for impleading them as party with a prayer that they may be paid full salary from 1986 till the date of filing the said CMP. The Apex Court rejected the said application on the ground that the agreement has been reached with the representative Union. More over, when the present respondents – employees had sought continuation in service, contending that the said settlement would not be binding on them, their contention was rejected up to the Apex Court on the ground that settlement has taken place between the employer i.e. the present petitioner and the respondent no. 3 Union. . Now it would not be open for this Court to again enter into the said controversy. The legality or otherwise of the said agreement/settlement would not again be a subject matter in issue in view of the orders passed by this Court and the Apex Court as referred supra and it would not be possible to accept the arguments of Mr. Changede that the said settlement is no settlement in the eyes of law and that the notice of change itself is illegal or that the respondents – employees are not bound by the said settlement. When an issue regarding termination of the respondents – employees on the basis of the said settlement has been 13 W.P. 2600/1991 - ( J ) upheld up to the Apex Court, now for the purpose of wages, the same would not be open for challenge. The respondents – employees would be bound by the wages agreed to be paid as per the said settlement. The Judgment relied by Mr. Changede of this Court in the case of Ibrahim Mulani referred supra, would not be applicable to the facts of the present case in view of the aforesaid events. 12. It is worth to note that the said settlement governed 1500 employees. Out of the said 1500 employees, barring the present 42 employees, all other employees had accepted the said settlement . In the said settlement also, the terms and conditions are laid down regarding the payment of wages from 1986 to 1988 and other benefits. It can not be said that the said settlement was totally unconscionable, more over when the said Factory is closed. The Judgment of this Court relied by Mr. Yenge in Bombay Gas Co. Ltd. V/s C.S. Baj & Ors. Referred supra would be applicable. 13. In light of above, the Labour Court committed a grave error while passing the impugned order. The Labour Court ignored the earlier orders passed by the Apex Court. 14. The petitioner has deposited the amount as per the settlement 14 W.P. 2600/1991 - ( J ) before the Labour Court, Ahmednagar. The learned counsel for the respondents – employees states that they may be allowed to withdraw the said amount. It is not disputed that the said amount deposited by the petitioner is towards the dues payable to the respondents – employees as per the settlement. As such, the respondents – employees are hereby permitted to withdraw the same along with accrued interest from the Labour Court, Ahmednagar. 15. In the light of above premise, I set aside the impugned order and make Rule absolute in terms of prayer clause ‘ A ’. [ S.V. GANGAPURWALA ] JUDGE knp/WP 2600.91