WP/8774/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8774 OF 2010 Thomson Press Kamgar Sanghatana, Thane ... Petitioner V/s. Thomson Press (India) Ltd., Navi Mumbai and Anr. ... Respondents Ms. Jane Cox for the Petitioner. Mr. C.U. Singh, Sr. Counsel, with Mr. K.S. Bapat i/b. Mahesh Shukla for the Respondents. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 22 ND NOVEMBER, 2010. PRONOUNCED ON : 3 RD DECEMBER, 2010. JUDGEMENT : . Rule made returnable forthwith, by consent. 1. This Writ Petition has been filed by a Trade Union registered under the Trade Unions Act, 1926. It represents the workmen employed with the respondent No.1-Company. The Petition has been filed to challenge the order dated 15th October, 2010, passed by the Industrial Court, Thane in Complaint (ULP) No.174 of 2010, allowing the respondents to resile from the statement made on their behalf by their Advocate, that they were not going to remove the plant and machinery from their Airoli establishment. For the sake of convenience, the petitioner will be referred to as “the WP/8774/2010 2 Union” and the respondents will be referred to as “the Company”. The facts giving rise to the present Petition are as follows : 2. The Company is engaged in the business of printing and runs Printing Presses all over India. It commenced operations in the Press at Airoli, Navi Mumbai in 2005. About 160 permanent workmen employed in the establishment at Airoli formed the Union on 30th April, 2010 and registered it under the provisions of the Trade Unions Act, 1926. The Company was informed about the formation of the Union by a letter dated 11th May, 2010. The Union also called upon the Company not to remove any machinery which was being used in the Airoli Press out of the premises of the establishment. A meeting was also sought by the Union with the officers of the Company in order to discuss several pending grievances of the workers. The Company replied to the letter of the Union and called upon it to prove that the workmen had formed the Union. It also conceded that it was intending to shift the machinery and that it was being done in the best interest of the Company. The Company also disclosed that once the machinery was shifted the employees in the Airoli Unit would be suitably utilized or deployed in either the local Unit or in the Press WP/8774/2010 3 where the machinery was being shifted. A Charter of Demands was submitted by the Union on 26th May, 2010. The demands raised pertained to 30 demands including revision in wages, dearness allowance etc. as well as abolition of contract labour. Since the Union was not called for any discussions, it sent a reminder to the Company on 5th June, 2010. According to the Union, the Company did not pay any heed to its demands and, therefore, it filed a complaint on 1st June, 2010 alleging that certain unfair labour practices had been committed by the Company under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of the Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”). The complaint was registered as Complaint (ULP) No.148 of 2010. The Union pleaded that the workers were made to work overtime for at least four hours each day but were not paid wages in consonance with the law. The Union also alleged that the Company had started victimizing the workmen for having joined the Union and for having submitted a Charter of Demands. An injunction was sought against the Company from removing the raw materials, semi finished goods, finished goods and plant and machinery from the factory premises i.e. the Press. WP/8774/2010 4 3. The Union then issued a notice to the Company on 9th June, 2010 declaring that a strike would be commenced from 26th June, 2010 in respect of the Charter of Demands submitted to the Company. One of the active members of the Union was immediately issued a letter transferring him to the Company’s Unit at Faridabad. That order was challenged by the Union in Complaint (ULP) No.182 of 2010. the Industrial Court refused to stay the transfer order. The Union challenged the order passed in this Court in a Writ Petition. The Company, withdrew the transfer order and therefore the writ petition was also withdrawn. 4. It appears that the Company was restrained, by the Industrial Court by its order dated 11th June, 2010 passed in Complaint (ULP) No.148 of 2010, from removing the raw materials, plant and machinery from the factory premises. The Company ultimately responded to the demands submitted by the workmen after becoming aware of this order. The Industrial Court heard the application for interim relief and granted permission to remove raw material, which according to the Company, was required for printing annual general reports pertaining to six companies. It also permitted the Company to remove semi finished goods and permitted the shifting of WP/8774/2010 5 machinery which was under utilized. The Industrial Court recorded a statement made on behalf of the Company that it would not retrench any of the employees or close down or shift the factory without following the due process of law. This statement was accepted by the Industrial Court and the application for interim relief was rejected. 5. The strike commenced on 26th June, 2010 pursuant to the notice of strike submitted by the Union. The Union filed Complaint (ULP) No.174 of 2010 before the Industrial Court, Thane on 2nd July, 2010. It was alleged that the Company has indulged in unfair labour practices under Items 1(a) and 4 of Schedule II and Items 2, 4, 5, 8, 9 and 10 of Schedule IV of the MRTU & PULP Act. The Union contended that the Company intended to engage fresh hands in place of the striking workmen. It was further pleaded that the Company had removed and was intending to remove raw material, plant and machinery, semi finished goods from the factory premises in order to have the work completed by other workers so as to break the unity of the workmen and stultify the strike called by the Union. No ad-interim relief was granted by the Industrial Court as an undertaking was given by the Advocate for the Company that it had no intention to close down the WP/8774/2010 6 factory or to shift the factory or to retrench the workmen without following the due process of law. A reply was filed by the Company, thereafter, contending that the work in the establishment was being carried out with the help of the non- striking workmen, supervisors, junior managerial staff etc. as also contract workers who were engaged by the Company much before a strike was called. It was also pleaded that Company could not be restrained from engaging the services of its own workmen from other Units by transferring them to Airoli Unit. The Industrial Court by its order dated 9th July, 2010 refused to grant any interim relief, on the basis of the assurance given by the Company, that it had no intention to close down or shift the factory or to retrench the workmen without following the due process of law. The statement of the Advocate for the Company in respect of shifting of the machinery was recorded thus : “29. So far as restraining the respondents from removing any raw materials, plant and machinery, semi finished goods, tools equipments, furnitures and fixtures from the factory premises of the respondents or from any way selling, mortgaging, alienating or creating any third party right in respect of land, plant and machinery is concerned, the advocate Shri. G.C. Pathak WP/8774/2010 7 has stated that the respondents are not going to sell the factory and they will not remove the plant and machinery. Therefore, in view of this statement made before the Court, the complainants are not entitled for any reliefs. The complainants had also made a prayer to restrain the respondents from recruiting any fresh hands in place of the complainants and it has been stated across the bar by advocate Shri. G.C. Pathak that they will not recruit the fresh hands but advocate Shri. G.C. Pathak has submitted that the workers on strike, cannot restrain the respondents from bringing the workers from the other unit of theirs to comply with the orders of the customers. Advocate Shri. G.C. Pathak has stated across the bar that they were not sell land, plant and machinery and factory premises, pending the hearing of the complaint and in the circumstances considering the statements made across the bar nothing survival and I do not find any unfair labour practices proved by the complainants for grant of interim relief and therefore I pass the following order.” (Emphasis supplied) 6. This order was challenged by the Union by preferring a Writ Petition No.5476 of 2010. I had disposed of the Petition with the following directions : “O R D E R (i). Prima facie the Company is engaging in unfair labour practices under Items 8 and 9 of Schedule IV of the MRTU & PULP Act. WP/8774/2010 8 (ii).During the pendency of the Complaint, the Company is restrained from ; (a). recruiting any person whether from the open market or from its own establishments elsewhere in the country in its establishment at Airoli. (b). transferring raw material, semi finished goods, finished goods, which may be lying in the establishment at Airoli. (c). removing the plant and machinery from the establishment at Airoli, during the pen- dency of the strike.” 7. Being aggrieved by my order, the Company filed Letters Patent Appeal No.177 of 2010. The Division Bench of this Court by its order dated 9th August, 2010 has not interfered with my order in respect of the directions contained in ii(a). As regards ii(b), the Court observed that since no prayer had been made before the Industrial Court for restraining the Company from removing the finished goods from factory, the direction was unjustified and, therefore, finished goods were permitted to be removed under the supervision of the Investigating Officer of the Industrial Court. The material which was not owned by the Company but by its customers was to be returned if demands were made by the WP/8774/2010 9 customers, after seeking permission from the Industrial Court. The application was to be made within two weeks of the order being passed by the Division Bench. As regards the removal of the semi finished goods, the Division Bench has not interfered with my order. The Division Bench then considered the directions in para ii(c) and passed the following order : “7. ...................................... So far as direction contained in paragraph ii(c) of the order is concerned, according to us in view of the clear statement made before the Industrial Court that the Appellant does not intend to remove any plant or machinery from the establishment, the learned single Judge was perfectly justified in making that order. However, in case the Appellant wants to resile from that statement and wants to transfer some machineries, the Appellant shall be at liberty to approach the Industrial Court for permission to withdraw its statement. The learned Counsel appearing for the Appellant informs us that his application for review is already pending before the Industrial Court. The Industrial Court shall dispose of that application in accordance with law as expeditiously as possible. In case the issue is not already raised in the Review Application, the Industrial Court shall permit that issue to be raised and decide it in accordance with law. Till the Industrial Court makes any order, the WP/8774/2010 10 order passed by the learned single Judge will continue to operate and two weeks after the Industrial Court makes an order, in case the order of the Industrial Court permits the Appellant to remove the machineries.” 8. An application for modification of the order passed by the Industrial Court was filed in July, 2010 after I had passed my order on 22nd July, 2010. This application was registered as Review Application (ULP) No.6 of 2010. The main prayer of the Company was that the words “plant and machinery” appearing in the order of the Industrial Court in paragraph No.29 of the judgement and order dated 9th July, 2010 should be read as “factory”. That application was dismissed by the Industrial Court on 2nd September, 2010. The Court was of the view that there was no inherent power in the Court to review its own order by reading the word “factory” in place of the words “plant and machinery”. The Court observed that by substituting the word “factory” in place of “will not remove the plant and machinery” would amount to amendment of the order and not correction of an error. 9. As the Division Bench of this Court by its order had granted liberty to the Company to request the Industrial Court to permit it to resile from its statement regarding WP/8774/2010 11 removal of plant and machinery, a fresh application was preferred by the Company on 18th September, 2010. The prayers sought in the said application are as follows : “(a).This Hon’ble Court may be pleased to allow the Respondents to withdraw their following statements as recorded in Para No.29 of the order dated 9.7.2010 passed below Ex.U.2:- “29....................................... the advocate Shri G.C. Pathak has stated that the respondents are not going to remove the plant and machinery.” (b). This Hon’ble Court be further pleased to allow and permit the Respondent Company to shift/remove the following machines from their Airoli Unit to its Faridabad and Noida Units:- a. Goss 600 D Web Printing Machine Five Colour Heatset Machine with its supporting equipments and accessories. b. Muller, Martin Accoro Binding Line Machine for Finishing Operation with its supporting equipment and accessories. c. Muller Martini Saddle Stitching Machine with its supporting equipment and accessories. d. Ventura Sewing Machine with its supporting equipment and accessories. e. Ventura Sewing Machine with its supporting equipment and accessories.” WP/8774/2010 12 10. The application was opposed by the Union, mainly on the ground that if the application was allowed, it would mean that the Company would be permitted to remove its machines. It was contended that in my order I had already made certain observations about the Company being injuncted from removing the plant and machinery which, according to the Union, were binding on the Industrial Court and, therefore, it should not grant the application of the Company. Besides that it was contended that the aforesaid machines were the very lifeline of the operations in the establishment at Airoli and, therefore, their removal would adversely affect the workers. 11. The Industrial Court by its impugned order dated 15th October, 2010, has granted the prayer of a Company and permitted it to withdraw the statement made on its behalf, by its Advocate, that it would not remove its plant and machinery from the Airoli Unit. It has further granted permission to the Company to shift the five machines mentioned above out of the premises at Airoli. The Industrial Court accepted the statement made by the Company that only 5 machines out of the 168 machines were being removed as the Company was suffering from huge losses at the Airoli Unit. WP/8774/2010 13 The Industrial Court observed that it was for the Company to organize its own business and decide which machines should be maintained in its establishments at each place. The Industrial Court observed that the Company was in the process of removing its machinery much prior to the declaration of the strike. The Court also observed that the Company had stated that it would bring back the machines, if necessary, in case the Union succeeds in the complaint and, therefore, the workmen would not be prejudiced if permission to remove the five machines was granted. 12. It appears that the Charter of Demands which had been submitted by the Union has been admitted into conciliation by the Conciliation Officer in respect of all except one demand. The demand which has not been admitted into conciliation pertains to abolition of contract labour. 13. Ms. Cox, the learned Advocate for the Union, has argued that the application filed by the Company for permission for withdrawal of its statement and permission to remove certain machines was not maintainable. She submitted that the Division Bench of this Court by its order dated 9th August, 2010 had been informed by the Company that a Review WP/8774/2010 14 Application was pending before the Industrial Court. The Division bench then directed that the Industrial Court could consider whether to permit the Company to resile from its statement and transfer some machines, in accordance with law. The Industrial Court was directed to review and dispose of that application as expeditiously as possible and in accordance with law. Ms. Cox, therefore, submitted that the Division Bench meant that an amendment would have to be sought in the Review Application which was pending, in the event the Company wanted to resile from its statement. According to her, the Company could not have filed a fresh application, as it had done in the present case, for being permitted to withdraw its statement about removal of plant and machinery and further to transfer five machines to their other establishments. 14. This submission of Ms. Cox, in my opinion, is not tenable. A perusal of the order of the Division Bench indicates that the Review Application was to be disposed of expeditiously and if the issue regarding transfer of machines was not raised in the pending application, the Company was permitted to raise that issue before the Industrial Court for it to decide it in accordance with law. This, in my opinion, WP/8774/2010 15 will not mean that the Company could only raise that issue by amending the Review Application. Although that course could have been adopted by the Company, it has chosen to file a fresh application which, in my opinion, was permissible in view of the order of the Division Bench. Therefore, the first submission of Ms. Cox is not tenable. 15. Ms. Cox then submitted that because of the statement of the Company, the Industrial Court, while considering the Union's application for interim relief, had not granted any injunction in respect of removal of plant and machinery. She submitted that the Company cannot be permitted to withdraw its statement now. According to her, if the Industrial Court was inclined to permit the statement to be withdrawn, then it ought to have considered the question of granting an injunction in respect of removal of plant and machinery, afresh. Ms. Cox submitted that by permitting the Company to withdraw its statement and further granting permission to remove certain machines, the Industrial Court has, in fact, stultified the object of the strike. She submitted that the very act of removal of machinery results in an unfair labour practice as those machines would be used by workmen in other units of the Company for the printing of material which was WP/8774/2010 16 being carried out in the Airoli Press prior to the strike, thus, defeating the very purpose of the strike. According to her, Item 8 of Schedule IV of the MRTU & PULP Act must be given a wider connotation so as to include within its sweep the removal of plant and machinery from an establishment where a legal strike is in progress. She submitted that the object or motive to remove the plant and machinery is in fact to break the strike and to use the machines elsewhere to perform the work of the Airoli Press and, therefore, a liberal interpretation must be placed on Item 8 or the rationale of the Act would be defeated. The learned Advocate then pointed out that the strike in its inception was in respect of all the demands which were pending consideration. However all the demands, except the one regarding abolition of contract labour have been admitted into conciliation, and therefore the learned Advocate submitted that the strike was now confined only to that demand. She then submitted that in view of my order passed on 22nd July, 2010, the Industrial Court has erred in permitting the Company to withdraw its statement and further allowing the removal of the five machines mentioned in their application. WP/8774/2010 17 16. Mr. Singh, the learned Counsel appearing for the Company, submitted that although a statement was made on behalf of the Company that, the plant and machinery would not be removed or shifted, it is necessary to shift certain machines and, therefore, the Company wants to resile from that statement. He pointed out that the proposal to shift the machines was envisaged in November, 2009 itself and quotations for dismantling the machines were obtained and finalised by April, 2010. According to him, therefore, the present strike had nothing to do with the removal of the machines and, the Company has rightly been permitted to resile from its statement. He then pointed out that the letter from the Union dated 11th May, 2010 recognized the fact that the machines were being shifted to other locations. According to him, the demands raised by the Union do not include any dispute with regard to shifting of machines. He submitted that it was necessary to shift the machines to Faridabad and other centres since the workload in the Airoli establishment had dropped. Keeping the machines idle would entail heavy depreciation and, therefore, according to Mr. Singh, the Company had decided to shift the machines. He pointed out that although 5 out of 168 machines were being WP/8774/2010 18 shifted, the Company had already installed substitute machines in the Airoli factory, so that the work in the Airoli factory would not be hampered once the strike was called off. He then submitted that, assuming without admitting, the strike may have been legal in its inception, its continuation cannot be said to be legal after the demands were admitted in conciliation. On 18th September, 2010, all the parties were informed by letter dated 10th November, 2010 of this fact by the Conciliation Officer. Mr Singh submitted that while on a strike, the workers can only withhold their own labour and cannot prevent those workmen who wished to work. The removal of the machines, according to him, was not as a result of the strike; nor was it a ruse for breaking the strike. He pointed out that it was necessary to move the machines to Faridabad and other centres only in order to cut the losses which have been incurred by the Company. He submitted that the Company is the best judge of how to utilize its machines to their optimum capacity and to organize its business. The Court cannot direct it to conduct its business with a particular machine in a particular manner, urged the learned Counsel. Therefore, the question of granting any injunction against the Company does not arise. WP/8774/2010 19 Mr. Singh further submitted that the order passed by me on 22nd July, 2010 has merged in the order passed by the Division Bench in the Letters Patent Appeal and, therefore, the Union cannot rely on any observations made by me in this order. 17. A perusal of the order passed by the Division Bench indicates that my finding with respect to the raw material, finished goods, semi finished goods has been set aside. The finding with respect to the removal of plant and machinery is confirmed in view of the statement made on behalf of the Company before the Industrial Court. Although the Division Bench has permitted the Industrial Court to consider whether the Company could be permitted to resile from its statement and remove certain machines, it has not set aside my observations with respect to removal of machinery from the establishment at Airoli. 18. In the Black’s Law Dictionary, the word “resile” has been defined as : (1). to retract (a statement, allegation, etc.); (2). to