1 39-wp-5752-09-group.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5752 OF 2009 Swan Mills Ltd. .. Petitioner. V/s. Rashtriya Mill Mazdoor Sangh & Others .. Respondents. WITH WRIT PETITION NO.5787 OF 2009 Swan Mills Ltd. .. Petitioner. V/s. Shri Dattaram D. More .. Respondent. WITH WRIT PETITION NO.10371 OF 2009 Shri Dattaram D. More & Others .. Petitioners. V/s. Swan Mills Ltd. & Others .. Respondents. Mr. N.M. Ganguli, for the Petitioner in WP No.10371 of 2009, for Respondents Nos. 2, 5 to 9, 11 to 21, 23 to 27, 29 to 34, 36 to 38, 40, 41, 48, 51, 55, 57, 58, 68, 69, 71, 72 & 81 in W P. No.5752 of 2009 and for Respondent Nos. 1, 3 to 7, 9 and 12 in W P No.5787 of 2009 Mr. V. P. Vaidya, for Petitioner in WP No.5752 of 2009 & WP No.5787 of 2009 and for Respondent No.1 in WP No.10371 of 2009. CORAM : K.K.TATED, J. DATE : 3rd AUGUST, 2011. 2 39-wp-5752-09-group.sxw P.C.: 1 Heard the learned counsel for the parties. 2 In Writ Petition Nos.5752 of 2009 and 5787 of 2009, the Petitioner- Original First Party challenges the common award dated 12th November, 2008 passed by the learned Member, Industrial Court, Mumbai in Reference (IC) Nos.19 of 1984 and 26 of 1985, whereas in Writ Petition No.10371 of 2009, the Petitioner- Original Second Party- employees challenges the same award passed by the Industrial Court. All these three matters arising out of the common award dated 12th November, 2008 passed by the learned Member, Industrial Court, Mumbai and, therefore, same are disposed of by passing common judgment. 3 A few facts of the matter are as under:- Initially, Reference was made by the Government of Maharashtra under Section 73 of the Bombay Industrial Relations Act, 1946 to the Industrial Court by its notification No. BIR/1084(7299)/ (61990)/ Lab 2 dated 10th October,1985 (Reference (IC) No.26 of 1985) and Notification No. BIR-1084 (6190) LAB-2 dated 10th March, 1985 (Reference (IC) No. 19 of 1984) in respect of the dispute between M/s. Swan Mills 3 39-wp-5752-09-group.sxw Ltd., and its employees relating to the employees' demand in Schedule annexed with the Reference. The schedule of the Reference reads as under:- “ The employees whose names appear in annexure “A” who have not been taken back on work, for any reason, after the general indefinite strike in the Bombay Cotton Textile Industry, commencing from 18th January 1982, be reinstated with such consequential reliefs such as back wages and continuity of services as may be deemed fit." 4 Pursuant to the said References, the employees filed their statement of claim. Those References were decided by the learned Member, Industrial Court, Mumbai by its award dated 20th November, 1995 holding that employees are not entitled to the relief of reinstatement with back wages and continuity of service. Operative part of the said award reads as under:- “(i) So far the relief of reinstatement with back wages and continuity of service in concerned, the present reference fails and it stands rejected. (ii) However, in the alternative relief, Party No.1 M/s. Swan Mills Ltd., Bombay is hereby directed to pay ex-gratia amount equivalent to retrenchment compensation at the rate of their last drawn salary of January 1982 till 5.2.1991(on which Memorandum of Understanding was signed between the parties which was part and parcel of B.I.F.R. Scheme) and also to pay gratuity permissible under the Law, Payment be made within 60 days. (iii) No order as to costs.” 5 Being aggrieved by the said award, the employees preferred 4 39-wp-5752-09-group.sxw Writ Petition No.140 of 1997. The said Writ Petition was dismissed by this Court on 21st June, 2000. Thereafter, the employees preferred Appeal No. 627 of 2000 in Writ Petition No.140 of 1997 in this Court. The said Appeal was decided on 21st August, 2007, setting aside the award dated 20th November, 1995 passed in Reference (IC) No.19 of 1984 by the Industrial Court and the order passed by the learned Single Judge of this Court in Writ Petition No.140 of 1997 dated 21st June, 2000. The Division Bench of this Court directed Industrial Court to hear afresh Reference (IC) No.19 of 1984. It is specifically stated in the said order that all contentions that may be available to both the sides are kept open to be raised before the Industrial Court. Operative part of the said order dated 21st August, 2007 reads thus:- “(i) The award dated 20.11.1995 passed in reference (IC) No. 19 of 1984 passed by the industrial Court and the order passed by the Learned Single Judge of this court in Writ Petition No. 140 of 1997 dated 21st June 2000 is set aside. (ii) Reference (IC) No.19 of 1984 is remitted to the Industrial Court for hearing and decision in accordance with law. (iii) All contentions that may be available to both the sides are kept open to be raised before the Industrial Court. (iv) The Industrial Court shall hear the matter only after the workers individually file their affidavit claiming entitlement to prosecute the reference. (v) Any benefits that may have been received by the workers pursuant to the award, which is set aside by this order, shall be taken into consideration by the Industrial Court while working out the benefits to which the workers may be entitled to according to the new award.” 5 39-wp-5752-09-group.sxw 6 Pursuant to the said order passed by the Division Bench of this Court dated 21st August, 2007, the learned Member, Industrial Court, Mumbai decided the Reference No.19 of 1984 and 26 of 1985, directing the Petitioner- Employer to pay full back wages at the rate last drawn to the workers involved in References from 18th January, 1982 to 5th February, 1991, in addition all reliefs already granted by them in both the References i.e. to pay ex-gratia amount equivalent to retrenchment compensation at the rate of their last drawn salary of January 1982 till 5th February, 1991 along with gratuity permissible under the law. 7 Hence, the employer preferred the present Writ Petitions. The learned counsel appearing for the Petitioner-Employer submits that the impugned order passed by the learned Member, Industrial Court, Mumbai dated 12th November, 2008 is against justice, equity and good conscience and the same is contrary to the directions issued by this Court by order dated 21st August, 2007 in Appeal No.627 of 2000. He submits that this Court specifically directed the Industrial Court to hear the References a fresh giving an opportunity to hear both the sides. It is specifically stated in the order of Division Bench of this Court that, all contentions of both the parties are kept open. He submits that Industrial Court has failed to appreciate that upon remand of the matter, all the arguments including defending the termination order were available to the Petitioner and as such 6 39-wp-5752-09-group.sxw the learned Industrial Court has committed error by presuming that the termination order is bad in law and that what relief to be granted was the issue at hand. In the present Petition, the employer has raised several grounds, challenging the order passed by the Industrial Court. The main ground urged before this Court is that, the Industrial Court in paragraph 17 recorded that, it appears from the order passed by Division Bench of this Court dated 21st August, 2007 in Appeal No.627 of 2000 that, the matter has been remanded to the Industrial Court for the limited purpose i.e. even though the Industrial Court found that the termination of services of workers is not in accordance with law, the Industrial Court denied relief of reinstatement and back wages. Now, the Industrial Court has to consider the subsequent events, after the decision in both the References. He submits that when the Division Bench of this Court specifically set aside the award dated 12th November, 2008 and matter was remanded to the Industrial Court for fresh hearing. The learned Member of Industrial Court restricted its consideration for the limited purpose i.e. for awarding reinstatement and back wages only. He submits that in view of the order of the Division Bench of this Court, the order passed by the learned Member of Industrial Court dated 12th November, 2008 is against justice, equity and good conscience and the same is liable to be set aside. 8 On the other hand, the learned counsel appearing for the 7 39-wp-5752-09-group.sxw Employees in all the matters submits that there is no substance in the Petitions filed by the Employer against order passed by the learned Member of Industrial Court. He submits that the Industrial Court rightly considered the directions issued by the Division Bench, considering the observations made in paragraph 6 of the said order. He further submits that all other issues were decided by the Industrial Court in its order 12th November, 2008 and on the basis of the same, if the present order is passed by the learned Member of Industrial Court, same is substantial in law. He further submits that the Petitioner preferred petition being Writ Petition No.1037 of 2009, is required to be considered on its own merits. 9 I heard both the sides at length. I have gone through the impugned order dated 12th November, 2008, order dated 21st August, 2007 passed by the Division Bench in Appeal No.627 of 2000 and other relevant proceedings. One thing is crystal clear that Division Bench of this Court in Appeal No.627 of 2000 by order dated 21st August, 2007, set aside the order passed by the Industrial Court dated 20th November, 1995 and matter was remanded to the Industrial Court for fresh hearing. It is also made clear in the said order that all contentions available to both the sides are kept open to be raised before the Industrial Court. In spite of these specific directions, the Industrial Court in paragraph 17 held that the High Court has remanded the matter for limited purposes. Paragraph 17 of the 8 39-wp-5752-09-group.sxw impugned order reads thus:- “Para-17:- It appears from the order passed by the Honourable High Court that the matter has been remanded to this court for limited purpose i.e. even though Industrial Court found that the termination of services of worker is not in accordance with law, then also Industrial Court denying relief of reinstatement and back wages, now this court has to consider the subsequent events, after the decision in both references. It has come in the evidence before this Court that the unit has been totally closed and workmen have accepted their dues, therefore, this Court cannot go into the controversy as to whether the termination/dismissal was legal and justified in the present reference. Since that issue has not been remanded to this Court by the Honourable High Court and since those findings were not challenged by the first party before the Honourable High Court. The findings of this Court, were challenged by the workers for refusing relief of reinstatement, back wages. It also appears that some of the employees have died during the pendency of the matter and some of the employees have already crossed the age of superannuation and considering all these facts, I am of the considered opinion that in addition to the reliefs already granted by this Court, in both the references, the employees are entitled to receive from the first party the full wages @ last drawn for the period from January 1982 till 5.2.1991. 10 From bear reading of the abovementioned paragraph 17 of the impugned order, it is clear that the Industrial Court without considering the directions issued by the Division Bench of this Court dated 21st August, 2007 decided both the References. Therefore, the impugned order dated 12th November, 2008 passed by the learned Member of Industrial Court in Reference Nos.19 of 1984 and 26 of 1985 is set aside. Matter is remanded to the Industrial Court to decide a fresh hearing according to the order passed by the Division Bench of this Court in Appeal No.627 of 2000 dated 9 39-wp-5752-09-group.sxw 21st August, 2007. 11 In view of setting aside the impugned order dated 12th November, 2008, nothing survives in the Writ Petition No. 10371 of 2009 and same is also disposed of for the reasons stated above. 12 No order as to costs. 13 Considering the facts and circumstances of the present case, Industrial Court is directed to dispose of the matters as early as possible but in any case within six months from the receipt of copy of this order. (K.K.TATED, J.)