-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 CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3509 OF 2008 PETITION NO.3509 OF 2008 PETITION NO.3509 OF 2008 M/s.Merck Ltd. ...Petitioner vs. Mr.Anil L.Lokhande & Others ...Respondents Mr.C.J.Sawant, Sr.Advocate with Mr.R.V.Paranjape for the Petitioner Mr.Rahul Nerlekar for Respondent Nos.1,2 and 4. CORAM: CORAM: CORAM: DR.D.Y.CHANDRACHUD,J. DR.D.Y.CHANDRACHUD,J. DR.D.Y.CHANDRACHUD,J. DATE DATE DATE : JULY 3, 2008. : JULY 3, 2008. : JULY 3, 2008. P.C.: P.C.: P.C.: 1. This petition is directed against an order passed by the Member of the Industrial Court at Thane in complaint (ULP) No.408 of 2004 filed under Section 28 read with Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act,1971. 2. It is the case of the Petitioner that each of the 17 workmen concerned who were admittedly paid an amount of Rs.6,00,000/- by the management offered their resignations on 30th January, 2003 which were accepted by the management on 31st January, 2003. The workmen were informed that since they had not attained the age of 40 nor completed 10 years of service, they were not entitled to receive the benefit of the scheme for voluntary retirement but in any event the management had paid them an amount of Rs.6,00,000/-. The workmen requested that their letters may be treated as -2- resignations from service. The management accepted the offers and paid an amount of Rs.6,00,000/- to each of the workmen. The contention of the workmen was that they were eligible to receive the benefit of the scheme for voluntary retirement dated 20th January, 2003 since as a matter of fact each of them had completed 10 years of service. The Tribunal allowed the complaint by an order dated 17th March 2008 and directed the management to pay an amount of Rs.2,50,000/- to each of the complainant-workmen. 3. On behalf of the Petitioner, reliance has been placed on the judgments of the Supreme Court in the Ceat Ltd. Vs. Ceat Ltd. Vs. Ceat Ltd. Vs. Anand Abasaheb Hawaldar Anand Abasaheb Hawaldar Anand Abasaheb Hawaldar (2006 LLR 335), Gyanendra Sahay Vs. Gyanendra Sahay Vs. Gyanendra Sahay Vs. M/s.Tata Iron & Steel Co.Ltd. M/s.Tata Iron & Steel Co.Ltd. M/s.Tata Iron & Steel Co.Ltd. (2006 LLR 954); and in HEC HEC HEC Voluntary Retired Employees Welfare Society and Another Vs. Voluntary Retired Employees Welfare Society and Another Vs. Voluntary Retired Employees Welfare Society and Another Vs. Heavy Engineering Corporation Ltd. and others Heavy Engineering Corporation Ltd. and others Heavy Engineering Corporation Ltd. and others (AIR 2006 Supreme Court 1420). The learned Senior Counsel appearing for the Petitioner submitted that each of the workmen had admitted that he had not completed 10 years of service which was the requirement for obtaining the benefit of the scheme for voluntary retirement. It was urged that on the request of the workmen, an amount of Rs.6,00,000/- was paid to each of them in full and final settlement and this resulted in a complete and final cessation of service. The complaint under the MRTU & PULP Act,1971 was filed on 21st June 2004, that is, about one and a half years after the cessation of service of the -3- workmen took place. Learned Counsel submitted that the complaint was not maintainable and in any event no case has been made out for grant of relief. 4. On the other hand, the learned counsel appearing on behalf of the workmen submitted that adequate evidence was adduced to establish that the workmen had worked for a period in excess of 10 years. Learned Counsel submitted that it is an admitted position that the workmen were casual workers they had produced photocopies of the P.F. certificates and salary slips at Exh.15-1 and Exh.25. 5. In paragraph 9 of the judgment of the Industrial Court, there is a brief discussion of the length of service which was rendered by the 17 workers. There is merit in the submission of the learned counsel for the Petitioner that the Industrial Court ought to have considered the case of each individual employee independently with a view to determine whether the documentary evidence that was adduced was sufficient to warrant the finding that the workmen were in continuous service for a period in excess of 10 years. Admittedly, the workmen were casual employees and it would not be adequate to produce isolated pay slips to establish the length of continuous service. Unfortunately, the exercise of determining the length of service of each employee on the basis of documentary evidence on record was not carried out in -4- the impugned order of the Industrial Court, beyond a brief discussion in paragraph 9 of the judgment. 6. In that view of the matter, during the course of the hearing of the proceedings in the Writ Petition both the learned counsel stated before this court that the matter may be remitted to the Industrial court for a fresh determination of the case. However, it would be necessary to clarify that the discussion in the earlier part of this judgment, would not be construed as the final view of this court on whether or not the complainants have fulfilled the requirements of the scheme for voluntary retirement it is only intended to indicate the absence of a cogent elaboration in the Judgment of the Industrial Court. In that view of the matter, the submission which was made by the learned counsel on behalf of the Petitioner and the learned counsel for the Respondent-workmen should be accepted in the interests of justice and the proceedings should be remitted back to the Industrial Court for a fresh determination. Both the learned counsel are agreed that no further evidence will be adduced before the Industrial Court with a view to expedite the hearing of the complaint. 7. Hence, in view of the agreed position before the Court, the following order is passed:- -5- (i) The impugned order dated 17th March 2008 passed in Complaint (ULP) No.408 of 2004 by the Industrial court is set aside. The complaint shall stand restored to the file of the Industrial Court with a direction to decide the same afresh in terms of the observations made above; (ii) All the rights and contentions of the parties are kept open; (iii) Complaint (ULP) No.408 of 2004 shall be disposed of as expeditiously as possible and preferably within a period of four months from the date of receipt of a copy of this order; and (iv) The parties shall appear for receiving directions on 28th July 2008 on which date the Industrial Court shall set down the complaint for expeditious disposal. 10. Parties to act upon an authenticated copy of this order. * * * * *