1 wp-1789-2011-group.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1789 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. V/s. 1. Ms. Mangal S. Sonawane ] Adult, Occup: Service, ] R/o. Flat No.7, I, Habiscus CHS, ] Godrej Hill, Kalyan (W), ] Dist. Thane. ] (for herself and for the ] employees as per Annexure-A) ] 2. State of Maharashtra ] Through its Secretary, ] Department of Urban Development ] Mantralaya, Mumbai 400 032. ] .. Respondents. WITH WRIT PETITION NO.1788 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. 2 wp-1789-2011-group.sxw V/s. 1. Nandkishor G. Sane ] Adult, Occup: Service, ] R/o. III Swamikrup, Datta Lane, ] Kalyan, Dist. Thane. ] 2. Prabhakar S. Pawar ] Adult, Occup: Service, ] R/o. 103, Hirajanki Apartment, ] Near Nutandyna Mandir School, ] Kalyan, Dist. Thane. ] 3. Bharatkumar B. Patil, ] Adult, Occup: Service, ] R/o. Radha Nagari, Bldg. No.16/11, ] Barve Road, Khadakpada, ] Kalyan, Dist. Thane. ] 4. Sanjay M. Patil, ] Adult, Occup: Service, ] R/o. 301, Amrut Park, Bldg. No.6, ] Khadakpada, Kalyan (W), Dist. Thane. ] 5. Lahu S. Waghmare, ] Adult, Occup: Service, ] R/o. III Kamayani Society, ] Chinchpada Road, ] Kalyan (W), Dist. Thane. ] 6. Shashikant S. Mahale, ] Adult, Occup: Service, ] R/o. 21/331, Vighnaharta Society, ] Near Birla College, Kalyan (W), ] Dist. Thane. ] 7. Dattatraya Y. Badave, ] Adult, Occup: Service, ] R/o.4, Vandana Society, ] Opp: Petrol Pump, Agra Road, ] Kalyan (W), Dist. Thane. ] 8. Vasant W. Khade, ] Adult, Occup: Service, ] R/o S-1, Swampnapurti Bldg., ] Mahatma Phule Road, ] Dombivili, Dist. Thane. ] 9. Anil C. Matakar, ] Adult, Occup: Service, ] R/o. B-2/603, Shri Vignaharta, ] Opp: Saibaba Mandir, Adharwadi, ] 3 wp-1789-2011-group.sxw Kalyan (W), Dist. Thane. ] 10.Sudhir L. Mokal, ] Adult, Occup: Service, ] R/o. 2, Shri Niwas Chawl, ] Behind Jagtap Compound, Tisgaon, ] Kalyan (E), Dist. Thane. ] 11.State of Maharashtra, ] Through its Secretary, ] Department of Urban Development ] Mantralaya, Mumbai 400 032. ] .. Respondents. WITH WRIT PETITION NO.1787 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. V/s. 1. Devram S. Pathare, ] Adult, Occup; Service, ] R/o. Pundalik Smruti, ] Cheda Road, Dombivli, Dist. Thane. ] 2. Pandurang K. Nandanwar, ] Adult, Occup: Service, ] R/o. 282, Pratham Siddhi Apartment, ] Kansai Section, Ambernath, ] Dist. Thane. ] 3. Sanjaykumar N. Jadhav, ] Adult, Occup: Service, ] R/o. E-8, Shree Sai Nagari Maharal, ] Varap, Kalyan, Dist. Thane. ] (for themselves and for the employees ] as per Annexure -A) ] .. Respondents. 4 wp-1789-2011-group.sxw WITH WRIT PETITION NO.1790 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. V/s. 1. Dilip V. More, ] Adult, Occup: Service, ] R/o. Pooja Tower, Thankar Pada, ] Agra Road, Kalyan (W), Dist. Thane. ] 2. Harishchandra M. Gaikar, ] Adult, Occup: Service, ] R/o. Near Rationing Godam, ] Adharwadi, Kalyan (W), Dist. Thane. ] (for themselves and for the employees ] as per Annexure-A) ] 3. State of Maharashtra, ] Through its Secretary, ] Department of Urban Development, ] Mantralaya, Mumbai 400 032. ] .. Respondents. WITH WRIT PETITION NO.1791 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. 5 wp-1789-2011-group.sxw V/s. 1. Ms. Shakuntala D. Chaudhari, ] Adult, Occup: Service, ] R/o. B-108, Anant Regency, ] Kala Talao, Kalyan (W), Dist. Thane, ] 2. Ms. Bhavika B. Vaidya, ] Adult, Occup: Service, ] R/o. E-4, 504, Rutu Park, ] Near Vrindavan Bus Stop, ] Thane (W), Dist. Thane. ] (for themselves and for the employees ] as per Annexure-A) ] 3. State of Maharashtra, ] Through its Secretary, ] Department of Urban Development, ] Mantralaya, Mumbai 400 032. ] .. Respondents. WITH WRIT PETITION NO.1793 OF 2011 1. Kalyan Dombivli Municipal Corporation ] Having its office at ] Shankar Rao Chowk, Kalyan, ] Dist. Thane ] 2. The Commissioner, ] Kalyan Dombivli Municipal Corporation ] Having its office at Shankar Rao Chowk, ] Kalyan, Dist. Thane. ] .. Petitioners. V/s. 1. Narayan B. Vyapari ] Adult, Occup: Service, ] R/o. Vadegar Gaon, ] Kalyan, Dist. Thane. ] 2. Rajendra S. Mahadik, ] Adult, Occup: Service, ] R/o. 1, Jain Chawl, Durga Nagar, ] Thankar Pada, Kalyan, Dist. Thane. ] (for themselves and for the employees ] as per Annexure-A) ] 6 wp-1789-2011-group.sxw 3. State of Maharashtra ] Through its Secretary, ] Department of Urban Development, ] Mantralaya, Mumbai 400 032. ] .. Respondents. Mr.A.S. Rao, for the Petitioner. Mr. Y.M. Pendse, for Respondent Nos. 1 & 3. Mr. P. G. Sawant 'B' Panel, for Respondent No.4. CORAM : K.K.TATED, J. RESERVED ON: 6TH JULY, 2011 DECLARED ON: 18TH JULY, 2011 JUDGMENT:- 1 Heard the learned counsel for the parties. 2 Rule. By consent, matters are taken on board for final hearing at the stage of admission itself. 3 All these Petitions can be disposed of by common judgment, because, the same arise out of the common judgment passed by learned Member of Industrial Court, Maharashtra, Thane, dated 29th April, 2010. 4 By these Petitions, under Articles 226 & 227 of the Constitution of India, Petitioners-Original Respondent-Corporation challenge the judgment dated 29th April, 2010 passed by the learned Member, Industrial Court, Maharashtra, Thane, directing Petitioners to implement the 7 wp-1789-2011-group.sxw settlement dated 3rd January, 1996 and to pay the benefits of the settlement to the Respondent-Original Complainant. 5 A few facts of the matter are as under:- The Respondent-Original Complainant filed complaint under Section 27 & 30 of Item No.5 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices (herein after referred as “MRTU” and “PULP”) Act, 1971 in the Industrial Court at Thane for mandatory injunction, directing the Petitioners, their Officers, Manager and/or agents to implement the settlement dated 3rd January, 1996 and to revise the wages of the Respondent-Original Complainant as per annexure 'A' to the scheme mentioned in the said agreement. In the said complainant, Respondent-Original Complainant made grievance before the Industrial Court that in spite of several reminders and demands, Petitioner failed to implement the settlement dated 3rd January, 1996. The said settlement is in existence as the same is not challenged by the Petitioner, nor taken any steps for setting aside the same. In the said complainant, the Petitioners have filed their Written Statement dated 15th January, 2009 and vehemently opposed the complainant. The Petitioners in their Written Statement stated that settlement dated 3rd January, 1996 was between them and two Unions and the settlement was applicable to the parties to the settlement. The 8 wp-1789-2011-group.sxw Petitioners raised objection in their Written Statement that the Respondent- Original Complainants cannot raise any claim based on settlement dated 3rd January, 1996 as they were not parties to the settlement. They further stated in their Written Statement that Rajput Parity report, Malwankar Award and Gawande Award came into operation and presently all the terms and conditions of the employees of the Corporation are governed by the Gawande Award and thus the settlement dated 3rd January, 1996 was treated as set aside. They further stated in their Written Statement that they signed settlement as per Section 2(p) and Section 18(1) of the Industrial Disputes Act, 1947 and was only one time settlement. Therefore, no dispute and/or claim based upon settlement dated 3rd January, 1996 is maintainable after the period of 12 years. They further raised the point about the limitation. 6 Considering the submissions made by the Petitioners as well as Respondents, the Industrial Court passed judgment dated 29th April, 2010, directing Petitioner to implement the settlement dated 3rd January, 1996 and to pay the benefits of the settlement to the Respondent-Original Complainant. Hence, present Petitions. 7 The learned counsel appearing for the Petitioner submits that the impugned judgment dated 29th April, 2010 passed by the learned 9 wp-1789-2011-group.sxw Member, Industrial Court, Thane is against justice, equity and good conscience and the same is liable to be set aside. He further submits that the learned Member of the Industrial Court erred in holding that the Petitioners have committed unfair labour practices within Item No.9 of the MRTU and PULP Act by not implementing the settlement dated 3rd January, 1996, especially and particularly when there arose no question to implement the said settlement in view of Gawand Award being in force at the relevant time. He further submits that the learned Member of the Industrial Court below erred in directing the Petitioners to implement the settlement which was not in existence at all and which already stood terminated and replaced with recommendations of 5th Pay Commission which provided higher and better perks to the employees. He further submits that the learned Member of the Industrial Court below erred in not appreciating the facts that the Respondent-Original Claimants are individual employees and not the members of the Union and, hence, they cannot seek implementation of the settlement to which they were not the parties. Therefore, the directions of the Industrial Court for implementation of the settlement dated 3rd January, 1996 are totally without jurisdiction. He further submits that the learned Judge of the Court below committed error in not appreciating the facts that under the provisions of Industrial Disputes Act, the settlement is binding on the parties to the settlement and whereas admittedly, the Respondent-Original Complainants are not the 10 wp-1789-2011-group.sxw parties to the settlement in question and have no locus to raise any dispute. On this submission, the learned counsel appearing for the Petitioner submits that the impugned order dated 29th April, 2010 passed by the learned Member, Industrial Court, Thane is liable to be set aside. 8 On the other hand, the learned counsel appearing for the Respondent-Original Complainant, vehemently opposed the present Writ Petitions. He submits that there is no substance in all these Petitions and the same are liable to be dismissed with costs. He submits that they filed complaint under Sections 28 & 30 and Item Nos.5 & 9 of the Schedule IV to the MRTU and PULP Act, 1971 for implementing the settlement dated 3rd January, 1996. In those complaints, they made following prayers:- (i) This Hon'ble Court be pleased to pass an order declaring and holding that the Respondents are guilty of Unfair Labour Practices as defined under item 5 and 9 of Schedule IV to the MRTU & PULP Act and further be pleased to pass an order directing the respondents to cease and desist the said Unfair Labour Practices. (ii) This Hon'ble Court be pleased to pass an order of mandatory injunction directing the Respondents their officers, Managers and/or agents to implement the settlement dated 03/01/1996 and to revise the wages of the complainant and the employees as per the Annexure “A” as per the scheme mentioned in the said agreement. (iii) This Hon'ble Court be pleased to pass an order of mandatory injunction directing the respondents their officers, Managers and/or agents to implement the Govt. Resolution dated 19/07/2004 regarding the merging of the dearness allowance and to revise the pay scale of the Complainant and the employees as per the Annexure “A”. 11 wp-1789-2011-group.sxw (iv) This Hon'ble Court be pleased to pass an order of mandatory injunction directing the Respondents their officers, Managers and/or agents to pay the Complainant the arrears of wages arising out of revision of pay scale per settlement dated 03/01/96 and Govt. Resolution dated 19/07/2004 and the employees as per the Annexure “A”. (v) This Hon'ble Court be pleased to pass an order of temporary injunction directing the Respondents their officers, Managers and/or agents to compute the pay scale to which the complainant is entitled as per the settlement dated 03/01/1996 and G.R. dated 19/07/2004 and to pay the wages accordingly to the Complainant and the employees as per the Annexure “A” pending hearing and final disposal of the complaint. (vi) Ad-interim relief in terms of prayer clause (v) above. (vii) Compensation of Rs.10,000/- per complainant. (viii) Cost. (ix) Any other relief as deemed fit and proper. 9 He further submits that though the settlement dated 3rd January, 1996 is in existence, the Petitioner-Corporation failed and neglected to implement the same. He submits that though they called upon the Petitioner-Corporation to implement the said agreement dated 3rd January, 1996 from time to time, the Petitioner-Corporation failed and neglected to do so for the reasons best known to them only. He further submits that the Petitioners' witness Mr. Nandkishor G. Sane specifically stated in his cross examination that the settlement dated 3rd January, 1996 is still in existence and the same is not implemented by the Corporation. He further submits that the complaint was only to the extent that 12 wp-1789-2011-group.sxw Petitioner must implement the settlement dated 3rd January, 1996. He further submits that said settlement dated 3rd January, 1996 was signed under Section 18(c) of the Industrial Disputes Act. As the settlement arises between the parties as per the Industrial Disputes Act, the same is binding on all the employees working with Petitioner-Corporation. The learned counsel for the Petitioner further submits that there is no question of limitation for filing the complaint and to implement the existing settlement. He submits that as the settlement is in existence and it remains unimplemented, the Respondents have every right to approach the Industrial Court at any time so long as the settlement remains unimplemented. In support of his submission, he relied on the judgment in the matter of Regional Manager, Maharashtra State Road Transport Corporation, Nagpur and Another v/s. Regional Secretary, Maharashtra State Transport Kamgar Sanghatana, Karanja, reported in 1984 LAB.I.C. 1721. Paragraph – A of that judgment reads thus:- “ Para-A- Where under the settlement the Road Transport Corporation assured the Union that it will absorb the workmen of the ex-operators and for non implementation of this assurance a complaint is filed on the ground that unfair labour practice is followed by the Corporation. Held that the relief claimed by the workers was for an unfair labour practice of a continuing nature and accordingly the occurrence of such unfair labour practice would recur so long as the relevant term of the settlement remains unimplemented. Undoubtedly, the workers have invoked Item 9 of Schedule IV of the Act No.1 of 1972, which entry relates to failure of implementing the settlement which according to both the parties is still in force and binding upon them. 13 wp-1789-2011-group.sxw Therefore, the unfair labour practice will continue to recur so long as the settlement remains unimplemented. Hence, the Union of workers has every right to approach the Industrial Court at any time so long as the settlement remains unimplemented. 1977 Lab IC 179 )Guj.) Rel. on.” 10 He also relied on Full Bench judgment of this Court in the matter of Maharashtra State Road Transport Corporation, Nagpur through its Divisional Controller, Bhandara v/s. Premlal s/o. Khatri Gajbhiye reported in 2003 II CLR 387. In this case, the High Court held that it is well settled that as long as the default in performance of obligation continues, the wrong is deemed to have continued and, therefore, it is to be taken as a continuing wrong. Paragraphs 24 & 26 of that judgment read thus:- “Para – 24 -The decision of the Division Bench of this Court in Regional Manager, Maharashtra State Road Transport Corporation, Nagpur and another is also of no help to the appellants. Therein it was specifically rules that “the respondent has invoked Item 9 of Schedule IV of the Act No.1 of 1972, which entry relates to failure of implementing the settlement which according to both the parties is still in force and binding upon them. Therefore, in our opinion the unfair labour practice will continue to recur so long as the settlement remains unimplemented.” As already held above, Clause 49 of 1956 settlement is still in force and, therefore, non-compliance thereof would amount to unfair labour practice by the appellants and it will continue to recur till and until the appellants grant the benefit under said Clause 49 of 1956 settlement to the respondents.” “Para 26 - It is well settled that as long as the default in performance of obligation continues, the wrong is deemed to have continued and therefore, it is to be taken as a continuing wrong. If the duty continues from day to day, the non- performance of that duty from day to day is a continuing 14 wp-1789-2011-group.sxw wrong (Vide Smt. Maya Rani Punj v. Commissioner of Income Tax, Delhi, (1986) 1 SCC 445).” 11 On the basis of these submissions, the learned counsel submits that the Petitioner failed to make out any case to interfere with the well reasoned judgment of Industrial Court dated 29th April, 2010 directing the Petitioners to implement the settlement dated 3rd January, 1996 and to pay the benefits of the settlement to the Respondent-Original Complainant. 12 I have gone through copy of the complaint, written statement, notes of evidence, copy of settlement dated 3rd January, 1996 and additional compilation filed by the Petitioner's Advocate and impugned judgment passed by learned Member of Industrial Court. 13 The learned counsel appearing for Respondent- Workmen pointed out that the Petitioner by their Resolution dated 17th January, 2011 granted benefit to some section of employees as per settlement dated 3rd January, 1996. Therefore, Petitioners are not entitled for any relief under Articles 226 and 227 of the Constitution of India. 14 From the above mentioned submissions, it transpires that the learned counsel for the Petitioner challenges the impugned judgment passed by the Tribunal on the following points:- 15 wp-1789-2011-group.sxw (i) The Respondent-Original Complainants are not parties to the settlement dated 3rd January, 1996 and, therefore, they cannot file complaints for implementing the said settlement; (ii) The complaint filed by the Respondents-Original Complainants is barred by the law of limitation. 15 The first point raised by the Petitioner about the non- maintainability of the complaint filed by the Respondent-Original Complainants is that they were not parties to the settlement dated 3rd January, 1996 and as such it is not binding on them. It is to be noted that in the Section 18 of the Industrial Dispute Act, 1947, it is specifically stated that once settlement is arrived at with the recognized Union, same is binding on the members of the said Union as well as non-members also. Section 18 of the Industrial Dispute Act reads thus:- 18. Persons on whom settlements and awards are binding:- (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. [Provided that, where there is a recognized union for any undertaking under any law for the time being in force, than such agreement (not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee) shall be arrived at between the employer and the recognized union only; and such agreement shall be binding on all persons referred to in clause (c) and clause (d) of sub-section (3) of this section]. 16 wp-1789-2011-group.sxw (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an arbitration award in case where there is a recognized union for any undertaking under any law for the time being in force or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on - (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; (c) Where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. 16 This section has been analyzed by this Court in the matter of Hill Son & Dinshaw Ltd., v/s. P. G.Pednekar & Others, reported in 2002 17 wp-1789-2011-group.sxw (4) BCR – 541. Paragraphs 7 & 8 of the said judgment reads thus:- “Para – 7- A bare perusal of the above quoted section would show that whereas a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived in the course of conciliation proceeding under the Act is binding not only on the parties to the settlement but also on other persons specified in Clauses (b), (c) and (d) of sub-section (3) of section 18 of the Act. Therefore, it the settlement arrived at between the employer and the workmen, otherwise than in the course of conciliation proceedings, with which we are concerned in this case, it shall be binding on the parties to the settlement. The phrase “parties to the settlement” includes both employer and an individual employee or the union representing the employees. If the settlement is between the employer and workmen it would be binding on that particular employee and the employer, if it is between a recognized union of the employees and employer, it will bind all the members of the union and the employer. That it would be binding on all the members of the union is a necessary corollary of collective bargaining in the absence of allegation of mala fides or fraud. Merely because an individual employee or some of the employees do not agree to the terms of the settlement entered into between a recognized union and the employer, he/they can not be permitted to contend that it is not binding on him/them.” “Para – 8- The aims and objects of the provisions of the Industrial Disputes Act include industrial peace which is essential to the industrial development and economy of the nation. Great emphasis is, therefore, laid on the settlements as they set at rest all the disputes and controversies between the employer and the employees. In the case of[Herbertsons Limited v. The Workmen of Herbertsons Ltd. and others], 1976(4) S.C.C. 736, the Supreme Court considered the effect of the settlement arrived at by the recognized union of majority workers. It was observed by Goswami, J., speaking for the Court that when a recognized union