- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.748 OF 2008 PETITION NO.748 OF 2008 PETITION NO.748 OF 2008 Hindustan Lever Limited (Now known as Hindustan Unilever Limited) ...Petitioner vs. Hindustan Lever Research Center Employees Union ...Respondent WITH WITH WITH WRIT WRIT WRIT PETITION NO.749 OF 2008 PETITION NO.749 OF 2008 PETITION NO.749 OF 2008 Hindustan Lever Limited (Now known as Hindustan Unilever Limited) ...Petitioner vs. Hindustan Lever Research Center Employees Union ...Respondent WITH WITH WITH WRIT WRIT WRIT PETITION NO.750 OF 2008 PETITION NO.750 OF 2008 PETITION NO.750 OF 2008 Hindustan Lever Limited (Now known as Hindustan Unilever Limited) ...Petitioner vs. Hindustan Lever Research Center Employees Union ...Respondent Mr.P.K.Rele, Senior Advocate a/w Mr.R.N.Shah, Mr.Mahesh Londhe i/b M/s.Sanjay Udeshi & Co. for the petitioner in W.P.Nos.748 and 749/2007 Mr.C.M.Naik a/w Mr.Mahesh Londhe i/b M/s.Sanjay Udeshi & Co. for the petitioner in W.P.No.750/2007 Ms Meena Doshi a/w Mr.Omkar Joshi for the respondent in all the petitions. CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 1,2008 : APRIL 1,2008 : APRIL 1,2008 P.C.: P.C.: P.C.: 1. The submissions of the learned counsel for the parties were heard yesterday. By consent of the learned counsel - 2 - appearing for the parties, writ petitions were taken up for final disposal at admission stage. 2. In Writ Petition No.748 of 2008, the petitioner has taken an exception to the order passed by the learned Incharge President of the Industrial Tribunal on an application under section 33-B of the Industrial Disputes Act,1947 (hereinafter referred to as the said Act of 1947) filed by the Petitioner. 3. Prayer in the said Misc.Transfer Application No.11 of 2008 was for transferring the proceeding of the Reference (IT) No.5 of 1993 pending before the learned Member of the Industrial Tribunal Shri V.V.Deshpande to the learned Member Shri A.D.Kadlag for the purpose of hearing the same along with the references (IT) No.83 of 1997, 51 of 1998 and 56 of 1999 (hereinafter referred to as "the said three references"). 4. It must be stated here that the reference No.83 of 1997 relates to the charter of demands pertaining to the workmen working in the head office of the Petitioner. Reference (IT) No.51 of 1998 pertains to the Charter of demands of workmen working in the establishment of the factory of the Petitioner at Mumbai and the reference (IT) No.51 of 1998 pertains to workmen of the Petitioner in the research centre of the Petitioner. The said three references were earlier disposed by an Award dated 31st December 2003. There were three writ - 3 - petitions preferred in this court for challenging the said Judgment and Award and by a common Judgment dated 6th December 2006, a learned Single Judge of this court has set aside the Awards passed by the Industrial Tribunal and the said three references were remanded for disposal afresh. The case made out in the application made under section 33-B of the said Act of 1947 by the petitioner is that in the Judgment dated 6th December 2006, this court has observed that the tribunal should consider overall wage packet and parity in all establishments of the petitioner. It was pointed out that the reference no.5 of 1993 relates to charter of demands made by the workmen in the research centre of the petitioner at Andheri regarding dispute of annual increment by way of stagnation increment and gratuity and housing loan. The contention in the transfer application is that as the there is a direction of this court to consider and decide the issue of parity while dealing with the said three references, the reference No.5 of 1993 deserves to be heard along with the said three references. The said application was opposed by the Respondent by filing a reply. Reliance was placed on order dated 27th May 2003 passed by the learned President of Industrial Tribunal by which a similar prayer was earlier rejected. It was contended that the said three references were ordered to be disposed of in a time bound schedule and therefore, therefore reference (IT) No.5 of 1993 cannot be ordered to be heard along with the said three references. - 4 - However, the Respondent stated that the Respondent had no objection for transferring the Reference No.5 of 1993 to the learned Member who was dealing with the said three references. By Judgment and order dated 19th March 2008, learned President of the tribunal has rejected the application for transfer. 5. Writ Petition No.749 of 2008 arises out of a similar order passed on the same day by the learned Incharge President on an application under section 33-B of the said Act of 1947 made by the petitioner seeking transfer of the references (IT) No.126 of 1991 to be heard along with the said three references. The reference No.126 of 1991 relates to a demand regarding wage stagnation increment, gratuity and housing loan of the workmen working on factory at Haji Bunder, Sewree Mumbai. The transfer was sought on the same grounds which were urged in the transfer application referred to above. The prayer for transfer was opposed by the respondent on the same ground as in the earlier case. In this case also the Respondent stated that there was no objection for transferring the dispute to the learned Member who was hearing the said three references. 6. Writ Petition No.750 of 2008 takes an exception to the order passed by the Incharge President of Industrial Tribunal on the same day on a similar application for transfer made by the petitioner praying for transfer of the reference (IT) No.87 of 1992 to the court of the learned Member before whom - 5 - the aforesaid three references were pending and for a direction that the reference No.87 of 1992 be heard along with the said three references. The Reference No.87 of 1992 relates to the demand made for annual stagnation increment relating to the workmen in the Fine Chemical Unit of the Petitioner. The prayer for transfer was made on the similar grounds taken in the other two transfer applications. Prayer for transfer was opposed by the Respondent by raising the similar contentions. 7. I have heard the learned senior counsel appearing in support of the writ petition No.748 of 2008 and 749 of 2008. I have also heard the learned counsel appearing in support of the writ petition no.750 of 2008 8. The learned counsel for the petitioners has invited my attention to various observations made by this court in the Judgment and Order dated 6th December 2006 by which the learned Single Judge has passed an order of remand. The learned counsel for the petitioners submitted that the direction of this court to the Industrial Tribunal is to consider overall wage packet and parity in all establishments of the petitioner-company. It is submitted that the subject matter of the three other references of which the transfer is sought by making the transfer applications certainly relates to overall wage packet and parity as the said references - 6 - relate to the demands of the workmen working in the other establishments of the petitioner-company. He pointed out that the demands were relating to stagnation increment. My attention was invited to the Judgment and Order dated 23rd August 2007 passed by the learned Single Judge of this Court in writ petition no.5414 of 2007 ( Hindustan Lever Research Centre Employees Union vs. Hindustan Lever Ltd. and others). An application was made before the learned President of the Industrial court for transfer of the reference (IT) 21 of 2001 from one learned Member of the Industrial Court to the learned Member who was seized of the said three references. The learned counsel for the petitioner pointed out that the said application was made at the instance of the Hindustan Lever Research Centre Employees Union. The said application was rejected by the learned President. He pointed out that by the aforesaid Judgment and order dated 23rd August 2007, not only that the prayer for transfer was allowed but the said reference No.21 of 2001 was ordered to be heard along with the said three references. It is, therefore, submitted on the reasoning adopted by the learned Judge in order dated 23rd August 2007, the learned Incharge President ought to have passed an order of the transfer as prayed by the petitioner. It was pointed out that when the order of transfer was passed by this court the reference No.21 of 2001 was partly heard and the two witnesses of the union were examined. It was submitted that notwithstanding the fact that the said - 7 - reference was partly heard, this court allowed the request for transfer. The learned counsel for the petitioner in writ petition no.750 of 2008 invited my attention to the various observations made by the learned single Judge and in particular the observations made in paragraphs 14 and 18 of the said Judgment and Order dated 23rd August 2007. The submission is that in order to avoid inconsistent findings, the order of transfer ought to have been passed which will be consistent with the order passed by this court dated 23rd August 2007. 9. The learned counsel for the contesting respondents pointed out that the said three references were ordered to be disposed of in a time bound schedule by this court are at the stage of hearing the final arguments. It was pointed out that the union has already filed written submissions on 24th March 2008 and on 25th March 2008, oral submissions of the learned counsel for the union have been heard. She pointed out that the references which are sought to be transferred by making the aforesaid transfer applications have not made any progress. She pointed out that in October 2005, the unions have closed their evidence and thereafter till today, the petitioner-company has not adduced the evidence and adjournments have been sought from time to time. The submission is that if the orders of transfer are passed, hearing of the said three references which is at the stage of - 8 - arguments will be delayed. My attention was also invited to the order dated 27th May 2003 passed by the learned Incharge President of the Industrial Court on earlier transfer application made by the Petitioner in these petitions which has been rejected by a reasoned order. She submitted that no interference was called for. She stated that the respondents have no objection if an order of transfer is passed without directing the clubbing of the six references. 10. The learned senior counsel for the petitioners in writ petition nos.748 and 749 of 2008 submitted that the learned Incharge President has not decided the issue whether the six references should be clubbed together. He invited my attention to the points for determination framed by the learned Incharge President and pointed out that the respondents-Unions have no objection for passing the order of transfer. He suggested that after passing an order of transfer, the issue whether the references can be clubbed together should be left to the decision of the learned Member of the Industrial Court to whom the references will be transferred. 11. I have given careful consideration to the submissions. The order of remand was passed by this court by a Judgment and Order dated 6th December 2006. The aforesaid Writ Petition no.5414 of 2007 was decided by this court on 23rd August 2007 - 9 - by which this court by setting aside the order passed by the learned President of the Industrial Tribunal directed that the reference (IT) no.21 of 2001 shall be transferred to the learned Member to whom the said three references were assigned. My attention was invited to what has been observed by the learned Single Judge in paragraph No. 14 of the Judgment dated 23rd April 2007. In paragraph No. 14, the learned Judge observed that parity is an issue which would have to be decided by the tribunal in each of these references and therefore it would be in the fitness of the things to have all the references decided by one tribunal. It was observed that in all these references the financial position of the company, the industry cum region formula and several other factors would be common to each of the references. In paragraph 18, the learned Single Judge observed that the pleadings disclose that prima facie the company has been considering all their employees at par. It was further observed that the possibility of different findings of two different tribunals on the issue of parity would lead to incongruous result. 12. Now coming back to the present petitions, it must be stated here that while passing the orders impugned in petitions in hand, the learned President of the Industrial Court has specifically considered the prayer for clubbing the three references along with the said three reference nos. 83 - 10 - of 1997, 57 of 1998 and 56 of 1999. Apart from considering the merits of the submissions, what has been observed by the learned Incharge President in paragraph 8 of the impugned Judgment and order which reads thus : "8....On the contrary, having no need, allowing the allowing the allowing the application application application would result in further delay in adjudicating would result in further delay in adjudicating would result in further delay in adjudicating of of of the four references between the same parties wherein the four references between the same parties wherein the four references between the same parties wherein the the the arguments are to be advanced from the next working arguments are to be advanced from the next working arguments are to be advanced from the next working day day day..." (Emphasis added) 13. As pointed out earlier by a Judgment and Order dated 6th December 2006, this court directed that the tribunal shall endeavour to expeditiously dispose of the said three references and preferably within a period of six months from the date on which a certified copy of the said order was produced before the tribunal. The petitioners were fully aware of the said time bound schedule fixed by this court. By a further order dated 23rd August 2007, in writ petition no.5414 of 2007, another reference was ordered to be transferred to the learned Member who was hearing the said three references. Notwithstanding this position, the petitioner waited till 23rd December 2007 for making the applications for transfer subject matter of these petitions. The said applications were made when the said three references which were made time bound by this court were at the stage of - 11 - hearing the arguments. As pointed out earlier, the unions have already filed the written submissions on 24th March 2008 and their oral submissions have also been heard on 25th March 2008. As against this, the three other references of which the transfer was sought by the petitioners are still at the stage of recording of evidence of the petitioners. The petitioners have not to adduced their evidence in the said references though the unions have closed their evidence in the year 2005. The net result of passing the order of clubbing all the six references together will be further delay in disposal of the said three references which are made time bound by this court and which are at the stage of hearing the arguments. As pointed out earlier, in the three references which are sought to be transferred, the unions have closed their evidence in October 2005 and for a period of two and half years, the petitioner-company has not adduced any evidence. Therefore, the learned Incharge President was right in declining the prayer to club all the six references which will result in delay in disposal of the said three references. It is pointed out that the time limit fixed by this court for disposal of the said three references has already expired and a request letter has been sent by the learned Member for extending the time. Passing an order of clubbing all the six references will amount to defeating the direction issued by this court on 6th December 2006 of time bound disposal of the said three references. - 12 - 14. The Respondents have not objected to the transfer of the three references to the court of the learned Member before whom the said three references are part heard. The apprehension of the petitioners that if the references are decided by the different learned Members, there will be a possibility of inconsistent decisions can be taken care of by ordering the transfer of the references to the learned Member Shri A.D.Kadlag. 15. Hence, I passing the following order : i) The three applications made by the petitioner under section 33-B of the Industrial Dispute Act,1947 bearing Misc. Transfer application Nos. 11 of 2008, 16 of 2008 and 28 of 2008 are hereby allowed and the Reference (IT) Nos.5 of 1993, 126 of 1991 and 87 of 1992 are hereby transferred to the the court of the learned Member Shri A.D.Kadlag before whom the Reference (IT) Nos.83 of 1997, 51 of 1998 and 56 of 1999 are pending. However, the transferred references will be heard separately and the prayer for clubbing all six references is rejected. Impugned orders are modified accordingly. ii) It is, however, made clear that the learned Member will proceed to decide the said three references viz.Reference - 13 - (IT) Nos. 83 of 1997, 51 of 1998 and 56 of 1999 along with Reference (IT) No.21 of 2001 as expeditiously as possible considering the time schedule fixed by this court. iv) Rule is made partly absolute in above terms with no order as to costs. JUDGE JUDGE JUDGE