- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 1281 OF 2009 Swatantra Mazdoor Sabha ... Petitioner Vs. Khanna Rayon Industries Ltd. ... Respondents ALONG WITH WRIT PETITION No. 1417 OF 2009 Devram Saluba Mankar & Anr. ... Petitioners Vs. Khanna Rayon Industries Ltd. ... Respondents *** Mr. George M. Thomas, for the Petitioner(s). Mr. V. P. Vaidya, for the respondents. *** CORAM : S. J. KATHAWALLA, J. DATE : SEPTEMBER 8, 2009. PC :- 1. Rule. The respondent waives services. As a short question is involved, by consent of parties, both the petitions are taken up for final hearing. 2. The above writ petitions are filed by the petitioners impugning the order passed by the Industrial Court, Mumbai dated - 2 - 8th December 2008 dismissing the Complaint (ULP) No. 1073 of 1999 filed by the petitioners. Before the Industrial Court the petitioners contended that the respondent failed to provide to the petitioners the benefit that was otherwise available to them as per the order dated 27th May 1994 of the AAIFR, being the sanctioned rehabilitation scheme of the respondent Company. Under the said scheme the respondent Company was allowed to proceed with the development of its lands at Ghatkopar. The respondent Company under the said scheme of rehabilitation had agreed to reserve 10% of the galas, proposed to be constructed for the workers retiring from the Company as a part of the rehabilitation proposal and were to offer these galas to the workers at cost price. However, the respondent Company failed and neglected to offer the galas to the petitioners for purchase at cost price. 3. It was therefore, contended on behalf of the petitioners before the Industrial Court that the order passed by AAIFR dated 27th May 1994 is liable to be considered as an award, settlement and agreement, as contemplated under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act 1971 (hereinafter referred to as “the Act”) and direct the respondent to provide them the benefit available to them under the scheme. The Industrial Court after hearing both the parties have come to the conclusion that the order of the AAIFR dated 27th May 1994 cannot be construed as an award, settlement or agreement, contemplated under Item 9 of the Act or violation of any statutory provisions applicable to them. In view thereof, it is - 3 - held that it cannot be said that the respondents have failed to implement the award, agreement or settlement and thereby committed an unfair labour practice under Item 9 of the said Act. 4. Admittedly Mumbai Sramik Sangh, a Trade-Union, representing 255 workers of the respondent was a party to the said scheme. The said Trade Union had entered into a Memorandum of Understanding with the respondent Company only on behalf of said 255 workers. As regards the said 255 workers, following are the relevant clauses, which are incorporated in the scheme- “2.05. In terms of Memorandum of Settlement, dated January 19, 1990 entered into with works, entire labour force of 255 workers would be retrenched. In its letter dated July 19, 1993, workers’ Union has indicated that their dues aggregated Rs.163 lakhs as on date. However, it has agreed to accept payment of Rs.50 lakhs (dues up to cut off date of March 1990) provided payment due to workers is paid before September 30,1994.” “2.14. Government of Maharashtra has indicated that it is agreeable to support the proposed rehabilitation scheme on the following conditions : (i) ...... (ii) The Company shall reserve 10% of the galas - 4 - proposed to be constructed, for the workers retiring from the company as a part of the rehabilitation proposal. This reservation will be for a period of six months from completion of the construction and that the company would offer these galas to the workers at the cost price.” “3.4 Labour 1. To agree for retrenchment of work force and to accept VRS payment as envisaged in the scheme.” 5. It is pointed out by the learned counsel for the respondent that the Memorandum of Settlement dated 19th January 1990 as set out in Clause 2.05 above pertains to the labour force of 255 workers who were to be retrenched. The petitioners admittedly are not part of the said labour force of 255 workers. The galas proposed to be reserved were for the said 255 workers, retiring from the Company, as a part of rehabilitation proposal namely VRS. The reservation of 10% galas agreed in the scheme was only for those workers for a period of six months from completion of the construction. The galas were reserved and offered to such workers and that all the reserved galas were exhausted in the year 1999 itself and of the said 10% reserved galas, none are vacant. The petitioners admittedly not being parties to this agreement cannot contend that the order of AAIFR dated 27th May 1994 is an award, settlement and/or agreement, as contemplated under Item 9 of the said Act and the Industrial Court is correct in recoding its - 5 - finding that it cannot be held that the respondent has failed to implement the award, agreement and/or settlement pursuant to the order of AAIFR dated 27th May 2004 and thereby committed an unfair labour practice under the said provision. 6. Despite this Court repeatedly calling upon the learned advocate appearing for the petitioner to address the Court as to how the order of AAIFR dated 27th May 1994 can be considered or construed as an award, settlement or agreement as contemplated under Item 9 of the Act, as alleged/contended by the petitioner, the learned counsel for the petitioner was unable to give any explanation and only submitted that the same be termed as an agreement because under Clause 2.14, the Company agreed to reserve 10% of the galas proposed to be constructed for the workers retiring from the Company as a part of the rehabilitation proposal. The Company was to offer these galas to the workers or retiring workers at the cost price. 7. The arguments advanced on behalf of the petitioner cannot be accepted. The petitioners have admitted that they were not parties to the Memorandum of Settlement with the respondent and were also not parties to the order of AAIFR dated 27th May 2004 since they were not amongst the 255 workers represented by the said Mumbai Sramik Sangh (Trade Union). The services of the petitioner were terminated in the year 1980 and though an order was passed in the year 1991 ordering the reinstatement, pursuant to which the respondent had obtained certain orders from this Court, the learned advocate appearing for the petitioners is unable to show - 6 - what steps the petitioners had taken to enforce their reinstatement/ retirement/ retrenchment as per law, after the writ petition filed by the respondents was dismissed by this Court on 21-11-2005. In any event the petitioners have till date not been able to successfully enforce the order of reinstatement of the petitioners against the respondent. The ad-interim order passed in favour of the petitioners by the Industrial Court in their Complaint (ULP) No. 1073 of 1999 was in force only from 21-10-1999 to 15-11-1999 and thereafter no interim order appears to have been passed in favour of the plaintiffs. 8. Again in any event, admittedly the scheme pertained to only 255 workers who were represented by the said Union and on whose behalf a Memorandum of Settlement dated 19th January 1990 was entered into with the Company all of whom had agreed to be retrenched and accept VRS payment, as envisaged in the scheme. It is obvious from Clause 2.14 that the Company had agreed to reserve 10% of the galas, proposed to be constructed for the workers retiring from the Company as a part of the rehabilitation proposal i.e. only the said 255 workers, for a period of six months from completion of the construction and had further agreed to offer these galas only to the said 255 workers at the cost price. The Company has already dealt with the said galas as far back as in the year 1999 since the question of offering the said galas to petitioners never arose. Even assuming that the order of AAIFR dated 27th May 1994 is liable to be considered as an award or agreement, as contemplated under 9 of the Act, the petitioners - 7 - would have no locus to file the said complaint since they were not parties to the said order of AAIFR dated 27th May 1994 and were not a party to the agreement in terms of which AAIFR passed its said order. 9. In view of the aforesaid, the Industrial Court was justified in dismissing the Complaint (ULP) No. 1073 of 1999 filed by the petitioners and the petitioners cannot be granted any relief in this writ petition against the said order of dismissal impugned herein. In view thereof the rule issued stands discharged and accordingly the writ petition stands disposed of. Sd/- [ S. J. KATHAWALLA, J.]