WP/6864/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6864 OF 1998 City and Industrial Development Corporation of Maharashtra Ltd., Navi Mumbai ... Petitioner V/s. Maharashtra Engineering Plastic and General Kamgar Union, New Bombay & Anr. ... Respondents Mr. G.S. Hegde for the Petitioner. Mr. J.P. Cama i/b. Sanjay Udeshi & Co. for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATE : 21 ST OCTOBER, 2010. ORAL JUDGMENT : 1. The Writ Petition has been filed against the order of the Industrial Court, Thane dated 29th June, 1998. This order has been passed in a Complaint (ULP) No.244 of 1992 filed by the respondent No.1 under Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”). 2. The facts in brief are as follows : WP/6864/1998 2 . Several lands were acquired by the City and Industrial Development Corporation of Maharashtra Ltd., (for short “the CIDCO”), i.e. the petitioner herein, to build a new city, Navi Mumbai. It agreed to provide employment to those persons whose lands had been acquired. A transport facility was provided by the CIDCO to the new settlers in Navi Mumbai. A separate Corporation namely the CIDCO Transport Corporation Ltd. was established on 15th November, 1979 by the CIDCO to run its bus services. That transport section, according to the CIDCO, was transferred to an independent Corporation known as Bombay Metropolitan Transport Corporation, (for short “the BMTC”). The BMTC closed down its business after obtaining permission from the Government, as required under Section 25O of the Industrial Disputes Act. However, the Industrial Tribunal had held that the closure was bad in proceedings under Section 25O(5). Being aggrieved the BMTC filed a Writ Petition, being Writ Petition No.5070 of 1984 which was rejected by this Court on 11th January, 1985. A Company Petition No.138 of 1986 was filed by the BMTC on 14th March, 1986 for voluntary winding up. That Petition was allowed. However, some of the workers affected by the said decision filed Company Application for setting aside the said WP/6864/1998 3 order. The Petition was reheard and was later dismissed. Being aggrieved by that order, BMTC preferred Appeal No.747 of 1987, which was allowed and the Official Liquidator, who was appointed by an order dated 17th December, 1986, was directed to wind up the BMTC and pay the dues to the workmen. 3. The respondent No.1 filed a Complaint (ULP) No.244 of 1992 on behalf of the workmen against the CIDCO. In that complaint, the respondent No.1-Union contended that there was an employer-employee relationship between the petitioner- CIDCO and the workmen represented by the respondent No.1- Union. According to the respondent No.1-Union, all the employees whose names were listed in the “Annexure-I” to the complaint were employees of the CIDCO. It was also contended that the services of the employees were terminated by the BMTC on 1st July, 1984 on the ground that they had become surplus. The workers were assigned work in BMTC and on its closure their services had been illegally terminated. It was also contended that the CIDCO had committed unfair labour practices under Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act. 4. The CIDCO filed a reply to the said complaint contending that it was not the employer of the workmen, represented by WP/6864/1998 4 the respondent No.1-Union. It contended that they were the employees of the BMTC which had been closed down on being wound up. It was further pleaded that the BMTC, being an independent body, the workmen had no connection with the CIDCO and therefore the contention that the CIDCO had committed unfair labour practices was not maintainable. 5. Evidence was led by the respondent No.1-Union by examining some workers before the Industrial Court. These workers deposed that they were members of the respondent No. 1-Union and that they had not been members of the Maharashtra General Kamgar Union which had opposed the liquidation process and which claimed to be representing the workers in 1987. They have also deposed that their services had been illegally terminated by the BMTC although they were employees of the CIDCO. Significantly no witness has been examined on behalf of the CIDCO. 6. The Industrial Court decided the preliminary issues by order dated 23rd February, 1998. By this order, the Industrial Court held that; WP/6864/1998 5 (a). the complaint was not barred by limitation; (b). there exists an employer-employee relationship between the CIDCO and the employees listed in “Annexure-I” to the complaint; (c). that the complaint was maintainable on behalf of the workmen who were not parties to the Appeal No.747 of 1987 filed before this Court; (d). that the respondent No.1-Union had locus standi to file the complaint on behalf of the workmen mentioned in the “Annexure-I” to the complaint. 7. This order has not been challenged by the CIDCO in any independent proceedings, nor in the present Petition. Therefore, the aforesaid issues have been accepted by the CIDCO. 8. The Industrial Court by the impugned order has held that; (i). the workmen were not employees of the BMTC; WP/6864/1998 6 (ii). the CIDCO had committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act; (iii). the employees listed in “Annexure-I” to the complaint are entitled to compensation calculated @ 75% of the back-wages from the date of filing of the complaint till the date of the order as also the retrenchment compensation. 9. Those employees who had completed the age of superannuation prior to filing of the complaint or after filing of the complaint were entitled to 75% of the back- wages as compensation along with the terminal dues till their respective dates of superannuation. The relief of reinstatement was not granted to such workmen. However, the CIDCO was directed to provide employment to those employees whose names were listed in “Annexure-I” to the complaint, who were available and found suitable and eligible for the post. It was further decided that in case such persons were provided employment, then the CIDCO would not be required to pay retrenchment compensation and other terminal dues to WP/6864/1998 7 them. However, while passing this order, the Industrial Court has observed that only such employees who are not covered in the Appeal No.747 of 1987 would be entitled to the benefits of this order. 10. Mr. Hegde, the learned Advocate appearing for the CIDCO, has submitted that the Industrial Court has completely erred in passing such an order when there was no employer-employee relationship between the CIDCO and the workmen. He has further submitted that the CIDCO has no transport service; so the question of reemployment or reinstatement of the workmen who were engaged in transport undertaking does not arise. He further submits that the BMTC was an independent Unit and therefore the CIDCO cannot be forced to reinstate the workmen employed by the BMTC. Furthermore he has submitted that there was no evidence on record to establish that those workers, whose names were listed in Annexure-1 to the complaint, were not covered by the order passed in Appeal No.747 of 1987. According to him, none of the workers have stated positively that they were not members of the Maharashtra General Kamgar Union when the order on the Appeal No.747 of 1987 was passed. WP/6864/1998 8 11. Mr. Cama, the learned Counsel for the respondent No.1- Union, points out that the CIDCO has not challenged the order passed by the Industrial Court deciding the preliminary issues and therefore these issues cannot be revisited in the present Writ Petition. He further submits that the CIDCO has not complied with the impugned order although there was no stay. According to him, had the CIDCO called upon the workmen, as directed by the Industrial Court, many of then would have been available for being employed. Even now, according to Mr. Cama, there are several workmen who would be interested in working with the CIDCO. He then submits that the Industrial Court is empowered under Section 30(1) of the MRTU & PULP Act to grant compensation in case it finds that an unfair labour practice has been committed. In the present case, he submits that the Industrial Court has granted compensation to the workmen rather than granting reinstatement with continuity of service as it has granted the same @ 75% of the back-wages payable. He has drawn my attention to the deposition of the witnesses examined on behalf of the respondent No.1-Union where each workman has stated that he or she was not a member of the Maharashtra General Kamgar Union. They have all deposed that they were WP/6864/1998 9 members of either the CIDCO Employees Union or the Shramik Sena or were not members of any Union. Categoric assertions have been made by the witnesses that they were not members of the Maharashtra General Kamgar Union. 12. The Industrial Court, while deciding the preliminary issues, has held that there exists an employer-employee relationship between the CIDCO and those workmen whose names were listed in “Annexure-I” to the complaint. This issue cannot be reopened by the CIDCO in the present Petition when it has accepted the findings of the Industrial Court. It has not challenged the order passed by the Industrial Court on 24th February, 1998 deciding the preliminary issues in this Petition and therefore it would not be open for the CIDCO to reopen those issues. Therefore it must proceed on the footing that there exists an employer-employee relationship between the CIDCO and the workmen, whose names were listed in Annexure-1 to the complaint, who are represented by the respondent No.1-Union. 13. Evidence of the workmen indicates that none of the 80 members listed in “Annexure-I” to the complaint were members WP/6864/1998 10 of the Maharashtra General Kamgar Union. Therefore the submission of Mr. Hegde that the Industrial Court ought to have decided whether the workmen were in fact members of the Maharashtra General Kamgar Union is untenable. His submission that the burden to prove that the workmen were members of the Maharashtra General Kamgar Union has wrongly been cast on the CIDCO is also unsustainable. The workmen have deposed in their evidence that they were not members of the Maharashtra General Kamgar Union. The burden therefore shifted to the CIDCO to rebut this evidence. The workmen have discharged the onus cast on them to prove that they were not the members of the Maharashtra General Kamgar Union. The submission of Mr. Hegde that these workmen have no right of employment pursuant to the order in the Appeal No.747 of 1987, is without merit as none of them were members of Maharashtra General Kamgar Union. 14. In my opinion, the order of the Industrial Court needs no interference. The Industrial Court has considered the evidence on record in its proper perspective. All issues have been dealt with by the Industrial Court correctly. It has held that there is no evidence on record to show that there WP/6864/1998 11 was favoritism in respect of one set of workmen and has therefore dismissed the complaint in respect of Item 5 Schedule IV of the MRTU & PULP Act. However, as regards Item 9, the Industrial Court has found in the evidence recorded before it that the workmen have been transferred to the BMTC without their consent by the CIDCO. Therefore, those transfers were illegal and were in breach of their service conditions. They were not provided work or wages by the CIDCO and hence Item 9 of Schedule IV of the MRTU & PULP Act was attracted. 15. The Industrial Court, having considered the fact that a long span of 13 years had elapsed from 1984 when the services of the workmen were terminated till the date it passed the impugned order, has not granted full wages to the workmen. Instead it has granted compensation @ 75% of the maximum wages together with retrenchment compensation and other legal dues from the date of filing of the complaint till the order was passed. In these circumstances, the order of the Industrial Court, Thane dated 29th June, 1998 passed in a Complaint (ULP) No.244 of 1992 is upheld. WP/6864/1998 12 16. The Writ Petition is dismissed. 17. Rule discharged. 18. No order as to costs. 19. The amount which is payable to the workmen under the order of the Industrial Court, Thane shall be deposited in the Industrial Court, Thane within a period of eight weeks from today. While depositing the amount, the CIDCO shall file a statement showing the amount payable to each workman as directed by the Industrial Court, Thane. 20. The workmen, whose names are listed in “Annexure-I” to the Complaint (ULP) No.244 of 1992, shall be paid their dues immediately after the amount is deposited by the CIDCO.