1 wp 316.99.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 316 OF 1999 The Indian Smelting & Refining Company Limited, a Company registered under the Companies Act, 1956, having its Registered Office and Non-Ferrous Foundry Works at: L.B.S. Marg, Bhandup, Mumbai -400 070 and a Ferrous Foundry Works at: 1st Pokhran Road, Thane – 400 606. ..Petitioner. Versus 1 Mr. Anthony D’Almeida ISARC Quarters, A-2/2, 1st Pokhran Road, Jekegram, Thane – 400 606. 2 Shri P.S. Ghose, Member, Industrial Court, having his office at: 2nd Floor, Meher Traders Plot No.7, Road No.21, Wagle Industrial Estate, Thane 400 604. ..Respondents. 2 wp 316.99.doc Mr. P.K. Rele, senior counsel with Mr. Piyush Shah and Mr. Vinod Tayade for petitioner. Mr. Y.M.Pendse for respondents. CORAM : K.K.TATED, J. Reserved on : 26/04/2011. Pronounced on : 03/05/2011. JUDGMENT: 1 Heard learned senior counsel for Petitioner and learned counsel for respondents. 2 By this petition under Articles 226 and 227 of Constitution of India, Petitioner challenges the order dated 24th December, 1998 passed by Industrial Court, Thane, in Complaint (ULP) No.554 of 1989 holding that the respondent original complainant is entitled to reinstatement and also 70% back wages. 3 Being aggrieved by the said order dated 24th December, 1998 passed by the Industrial Court, Thane, the Petitioner original respondent no.1 preferred present Writ Petition under Article 226 and 227 of the Constitution of India. 3 wp 316.99.doc 4 A few facts of the matter are as under: The Petitioner-company is a Public Limited Company incorporated under the provisions of the Indian Companies Act, 1956, having its head office at Bhandup, Mumbai and the Ferrous Foundry Works at Thane engaging about 600 employees. 5 The Respondent original complainant filed Complaint (ULP) No.554 of 1989 in the Industrial Court at Thane, in the matter of unfair labour practices as defined under Item 5, 9 and 10 of Schedule IV to the M.R.T.U. and PULP Act, 1971. The respondent was in employment of Petitioner company since 1st August, 1975 as senior fitter in Maintenance Department. However, the respondent left the services of the Petitioner company from 20th April, 1977 and rejoined on 7th March, 1978. Since then the respondent was in the employment with the Petitioner company. 6 On or about October, 1986, the employees of the Petitioner-company put up a demand for the bonus. However, the same was declined by the Petitioner-company. Thereafter, the Petitioner-company declared lock out from 10th January, 1987. Because of declaration of lock out, Association of 4 wp 316.99.doc Engineering Workers filed a Complaint (ULP) No. 16 of 1987 against the Petitioner alleging that the lock up declared by them is illegal. The Industrial Court passed an interim order on 10th March, 1987 to the effect that the notice dated 9th January, 1987 issued by the Petitioner does not constitute lock out. 7 The Association then filed a Revision which was ultimately dismissed on 26th August, 1987. However, the members of Association of Engineering Workers who were working at Thane Foundry continued to resort to the illegal strike from 10th January, 1987 to 27th March, 1987 disregarding the notices issued by the Petitioner. Therefore, the Petitioner issued a final notice individually to all the workmen calling upon them to report to duty latest by 2nd March, 1988. However, the workmen did not respond and therefore, the Petitioner issued individual notices of discharge on 24th March, 1988 to 321 workmen then on the rolls including the respondent and also displayed the names of the workmen to whom the notices were issued on the notice board outside the main gate of the company/factory.. In view of the illegal strike resorted to by the workmen for a period of one year, the Petitioner-company by way of abundant caution discharged them under the model standing order and forwarded alongwith the notice, cheque for 13 days wages in lieu of notice. 5 wp 316.99.doc 8 During the same period, another Union namely, Engineering and General Mazdoor Sangh filed a Complaint (ULP) No.128 of 1988 before the Labour Court, Thane, on 28th April, 1988 praying for reinstatement of the said 321 workmen with full wages and continuity of services from 24th March, 1988 and for declaration of the letter dated 24th March, 1988 as null and void. 9 In the mean while, the Engineering and General Mazdoor Sangh, the Complainant in Complaint (ULP) No.128 of 1988 requested the Petitioner-company to start the factory and assured that the workmen would give maximum co-operation in achieving maximum production and will maintain discipline and good behaviour and no further demands of the financial nature would be made. After detailed discussion and negotiation the Petitioner agreed to absorb 120 workmen out of 257, 64 having already resigned and further agreed to give compensation to the balance at the rate of 45 days wages for every nine completed years of the service up to 9th January, 1987 over and above other terminal dues. The said settlement was executed on 4th September, 1989. Some of the relevant paragraphs of Memorandum of Settlement dated 4th September, 1989 are as under: 6 wp 316.99.doc “1 The Union and all the workmen accept and agree that the order of cessation dated 24th March 1988 is valid and legal and was justified and that in respect of the same no controversy lies and do not dispute the same in view of the settlement reached hereby. 3 The Union and the workmen agree and accept to withdraw the said Complaint (ULP) No. 128 of 1988 and declare hereby that no dispute in the matter of cessation of employments survives. This Settlement shall come into effect on and after the withdrawal of the said Complaint. 4 The Company upon the withdrawal of the said Complaint (ULP) No.128 of 1988 agrees to employ 120 workmen whose names are given in the list annexed as “Annexure – A” within a period of six months in a phased manner. Those workmen will be taken as per requirements from time to time and within six months, subject to the force majeure, all of 120 workmen will be employed. However, the first batch of such workmen will resume duty two days’ after the said withdrawal of the Complaint (ULP) No.128 of 1998 from the Vth Labour Court, Bombay subject to the other clauses of this Settlement. 7 wp 316.99.doc 6 The Union undertakes and agrees that this Settlement will be signed by all the workmen and the Union. 11 It is agreed that the Company shall treat those workmen whose names are given in Annexure A as in continuous service although they will not be entitled to and be paid wages, leave, gratuity, provident fund, ex-gratia, retrenchment compensation or any benefits in respect of the period from 10-1-1987 upto the date the workmen are taken in employment. 16 The Company agrees to give preference in employment to such of the workmen who have ceased to be in employment on and from 24-3-1988 and shown in Annexure ‘B’ hereto if and when any vacancy arises in future and if they are found suitable for the same. It is clearly understood and agreed that such of workmen who are given employment shall be new employees and their services shall be reckoned from the date of fresh employment and will be paid wages and other benefits applicable to temporary workmen till they are made permanent by the Company as per its rules and practice. 18 It is agreed that this Settlement will be signed by all the workmen mentioned in Annexure ‘A’ and ‘B’ hereto and unless it is so signed within 8 wp 316.99.doc two months from the date hereof, this Settlement will automatically become non-operative and not binding of any of the parties. However, in view of the Union having majority of the above workmen as its members the Company agrees to waive signature of all the workmen if it is satisfied that in its opinion only few workmen have not signed the Settlement. In that case those few workmen will not be entitled to any benefit of this Settlement including those mentioned in Clause 7 hereof. The Union agrees not to take up the individual case of such few workmen. It is agreed that those workmen mentioned in Annexure B who have been provided with residential facility will vacate the same before they are paid their dues under this Settlement.” 10 In view of the Memorandum of Settlement dated 4th September, 1989, the Engineering and General Mazdoor Sangh, Thane and Petitioner-company filed joint preceipe/application before the 5th Labour Court at Bombay in Complaint (ULP) No.128 of 1988 stating that parties to the said Complaint have arrived at settlement out of court and therefore, the Complaint be dismissed for want of prosecution. The said consent praecipe/application was filed before the Vth Labour Court in September, 1989. On the basis of said Application for disposal of Complaint (ULP) No. 128 of 1988, the Labour Court passed an 9 wp 316.99.doc order on 5th September, 1989 and disposed of the said complaint. 11 As per Memorandum of Settlement dated 4th September, 1989 leaving 11 members including the Respondent, rest of 257 members of the Union/Sangh have signed the said settlement and accepted terms and conditions thereof. 12 The Respondent no.1, on 26th October, 1989 filed Complaint (ULP) No.554 of 1989 in the Industrial Court at Thane, complaining unfair labour practices as defined in Item no. 5, 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971 seeking declaration that the action of the Petitioner-Company of not allowing the Petitioner to resume duty on 28th March, 1988 is illegal retrenchment and to direct the Petitioner to reinstate the respondent with effect from 20th March, 1988 with full back wages and with continuity of service. In the said complaint, the Petitioner-company filed their affidavit in reply dated 4th February, 1998 opposing the reliefs claimed by the respondent on the ground that the respondent failed to disclose any cause of action in the said complaint. They submitted that the settlement dated 4th September, 1989 signed with the Union/Sangh representing the workmen is binding not only on those workmen 10 wp 316.99.doc who have signed the same but all the members. They further raised the point of limitation stating that the cause of action arose on 24th March, 1988 where as, the respondent filed Complaint (ULP) No.554 of 1989 on 27th October, 1989 which is barred by limitation. Not only that the respondent failed to file any application for condonation of delay along with the complaint. They further raised objection of maintainability of the said complaint on the ground that the previous complaint filed by the Union being Complaint (ULP) No.128 of 1988 before the 5th Labour Court was for the same cause of action and the respondent is member of the said Union/Sangh. Therefore, for the same cause of action, respondent cannot file the present complaint. 13 Considering the objections raised by the Petitioner, the Industrial Court by its order dated 24th December, 1998 held that Petitioner committed unfair labour practices under Item no.5, 9 and 10 of Schedule IV of the MRTP and PULP Act, 1971 and directed Petitioner to reinstate the respondent in service with 70% back wages. 14 The learned senior counsel appearing on behalf of Petitioner submits that the judgment and order passed by the Industrial Court is against justice, equity and good conscience 11 wp 316.99.doc and same is liable to be set aside. He further submits that the Industrial Court ought to have held that the complaint filed by the respondent under Item 5, 9 and 10 of the Schedule IV of MRTU and PULP Act, 1971 on 26th October, 1989 was barred by limitation. The Industrial Court failed to appreciate that the respondent failed to file any application for condonation of delay. 15 The learned senior counsel appearing on behalf of Petitioner submits that the Industrial Court had no jurisdiction to entertain the complaint as filed, because the jurisdiction to entertain a complaint from the retrenched workman, by declaring the retrenchment illegal rests with the Labour Court, as per section 7 of the MRTU and PULP Act. 16 The learned senior counsel further submits that the learned Member of Industrial Court failed to appreciate that the complaint of respondent no.1 was primarily concerned with his discharge from the services of the Petitioner from 24th March, 1988 for which the Industrial Court has no jurisdiction to entertain the complaint as it is exclusively under the jurisdiction of the Labour Court. In support of this submission, he relies on the reported judgment in the matter of Dilip s/o Indrabhanji Wawande vs. Industrial Court, Nagpur & Ors. reported in 12 wp 316.99.doc 1995 II CLR 897 and A-Z (Industrial) Premises Co-op. Society Ltd. vs. A.T.Utekar & Ors. reported in 1997 (2) CLR 1033. 17 The learned senior counsel appearing on behalf of Petitioner-company submits that the Industrial Court ought to have held that the Complaint (ULP) No.554 of 1989 filed by the respondent was not maintainable in view of the principle of res judicata.. He submits that initially, for the same cause of action, the Engineering and General Mazdoor Sangh, Thane had filed Complaint (ULP) No.128 of 1988 under Item no. 1 (a), (b), (d), and (f) of Schedule IV of MRTU and PULP Act, 1971 and for directing Petitioner-company to reinstate all the workmen with full back wages and continuity of service from the date of termination dated 24th March, 1988. 18 The Respondent was a member of the said Union. The said complaint was withdrawn by the Union in view of memorandum of settlement dated 4th September, 1989, therefore, filing of present complaint by the respondent in his individual capacity for the same cause of action is hit by principle of res judicata. 19 The learned senior counsel submits that admittedly Association of Engineering Workers (hereinafter referred to as 13 wp 316.99.doc “the Sangh”) filed Complaint (ULP) No. 128 of 1988 for reinstatement of the workmen whose services were terminated by the letter dated 24th March, 1988. The Sangh arrived at the settlement on 4th January, 1989. One of the clause of which was withdrawal of the Complaint (ULP) No.128 of 1988 in which the respondent original complainant was also concerned. Pursuant to the settlement, an application was made to the Labour Court on 5th September, 1989 for dismissal of the Complaint for want of prosecution. The Labour Court by its order dated 5th September, 1989 was pleased to dismiss the Complaint (ULP) No.128 of 1988. The present complaint was filed by respondent original complainant on 26th October, 1989 in which the substantial prayers are about the legality or his termination; therefore, the fresh complaint on the same cause of action cannot be filed. In support of his contention, he relies on the judgment in the matter of G.B.Hingurani, Partner, Fashion Apparels, Mumbai vs. Vinayak Narayan Govekar and another reported in 2010 II CLR 595. In that case, our High Court held that on the same point second complaint is not tenable. Head note of the said authority reads as under: “Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 – 14 wp 316.99.doc S.28 – ULP Complaint – Closure of establishment – Earlier ULP Complaint No.743 of 1991 was settled by all the workers and disposed of on 18-3-1998, except by one workman i.e., respondent No.1 (present complainant) – Petitioner’s grievance that this 2nd complaint is not maintainable at law, rejected – Hence this petition – Held that in view of law settled on the point this 2nd complaint is not entertainable – It is unsustainable as principles of res judicata, estoppel are also relevant in industrial disputes – Issues already settled in one proceeding, cannot be reagitated – Whether matter was decided on merits or not, is irrelevant.“ 20 He also relies on the judgment in the matter of Maharashtra Kamgar Sangharsh Samiti and another vs. Horizon, the Beach Hotel and others reported in 2006 I CLR 419. In that case, our High Court held that fresh complaint for the same cause of action is not maintainable after withdrawal of the earlier one. The Head note of the said judgment reads as under: “Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 – Item 6 of Schedule II and Item 9 of Schedule IV – Civil Procedure Code – Order 23 Rule 1 – Maintainability of fresh complaint after withdrawal 15 wp 316.99.doc of earlier one – Respondent no.1 runs to hotel at Juhu-Mumbai – Bharatiya Kamgar Karmachari Sangh is recognised union of workers in the establishment of respondent no.1 – In June 1999 Industrial relations between management and workers became strained – According to Management, workers resorted to illegal strike while according to workers, management was preventing them from attending the work – On 10.7.1999, aforesaid recognised union filed complaint of unfair labour practice under Item 6 of Sch.II and Item 9 of Sch. IV of the Act alleging that respondent no.1 has effected illegal lock-out – On 24.2.2000, said recognised union withdrew the complaint – On 28.4.2000, petitioner nos. 2 and 29 other workmen filed another complaint alleging same facts which is held by Industrial Court as not maintainable and hence this petition – Following the ratio laid down by the Supreme Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal 1987 1 SCC 5, it is held that principle contained in Order 23 Rule 1 of C.P.C. would also apply equally to the proceeding before Labour or Industrial Court and as such the Industrial Court has rightly held the second complaint to be not maintainable. ” 21 He also relies on the judgment in the matter of Association of Engineering Works vs. Oriental Rubeer 16 wp 316.99.doc Industries and others reported in 1994 I CLR 319. In that case also our High Court held that if the earlier complaint on the same fact was dismissed then the subsequent complaint is not maintainable to agitate the same issue. Paragraph no.7 of the judgment reads thus: “In view of the above position, the question of delay loses all significance. However, it may be mentioned that the contention of the petitioner before the Industrial Court that the closure of an establishment gives rise to a continuous cause of action and, as such, no period of limitation applies, does not appear to be tenable in law. As regards the decision of the Supreme Court in Mst. Katiji, (supra), it may be observed that the Supreme Court in the above case has given guidelines to the Courts to take a liberal approach in the matter of condonation of delay, but the said judgment should not be read in a manner which may amount to giving a good-bye to all period of limitation prescribed by the statutes. The concept of liberal approach is only a departure from the earlier tough approach which required a person to explain the delay for each day. It should not be stretched too far because after all periods of limitation are intended to bring an end to the litigation at some point of time and they must receive due consideration. Condonation of delay will depend on 17 wp 316.99.doc facts and circumstances of each case. However, in the present case, that question is not very relevant in view of the fact that the second complaint is not maintainable even by application of principles of res-judicata. 22 The learned senior counsel appearing on behalf of Petitioner submits that the settlement dated 4th September, 1989 is binding on respondent also. The respondent in his deposition admitted that he was also member of the said Union/Sangh. He also stated in his deposition that he was present in the meeting of workers union, therefore, the decision taken by Union on behalf of their members is binding on each and every member in view of section 18(1) of the Industrial Disputes Act, 1947. Section 18 of the Industrial Disputes Act, 1947 reads as under: “18. Persons on whom settlements and awards are binding: (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. Provided that, where there is a recognised union for any undertaking under any law for the time being in force, than such agreement (not being an agreement in respect of dismissal, discharge, removal retrenchment, termination of 18 wp 316.99.doc service, or suspension of an employee) shall be arrived at between the employer and the recognised union only; and such agreement shall be binding on all persons referred to in clause (c) and clause (d) of sub-section (3) of this section. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an arbitration award in case where there is a recognized union for any undertaking under any law for the time being in force or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on. (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be records the opinion that they were so summoned without proper cause; 19 wp 316.99.doc (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) Where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.” 23. He submits that the settlement was signed with the Sangh in which the Sangh accepted that the settlement dated 24th March, 1988 was valid, legal and justified. The respondent original complainant was listed in the settlement at serial no.38 and admittedly, the respondent original complainant was a member of the said Sangh and that at the General body meeting a decision was taken that 120 workers would be allowed to resume duties and that the respondent original-complainant- worker was present at the meeting, that in the Complaint (ULP) No.128 of 1988 filed by the Sangh, the Sangh claimed to representate all employees and that the respondent original complainant was inducted in the complaint. He submits that it is well settled law that the settlement under section 2 (p) reads 20 wp 316.99.doc with section 18 (1) of the Industrial Disputes Act, 1947 is binding on all members of the Sangh. In support of this contention, he relies on the judgment in the matter of Vrudhachalam P. & Others vs. Management of Lotus Mills and another reported in 1998 (2) LL.J. 389. In that case, the Apex Court held that the settlement reached during the conciliation proceedings is binding, not only on members of signatory unions but also on the workmen whose Union, having participated in proceedings, refused to sign settlement, the settlement ipso-facto binds all workmen who were parties to Industrial dispute. Paragraph nos. 8 and 9 of that judgment read as under: “8. It has to be kept in view that the Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. The principle of industrial democracy is the bedrock of the Act. The employer or a class