1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3211 OF 2008 Bajaj Auto Ltd. ...Petitioner. Vs. Vishwa Kalyan Kamgar Sanghatana &Anr. ...Respondents. .... Mr. J.P. Cama, Senior Advocate with Mr. Rohhan Cama and Mr. Mahesh Londhe i/b. M/s.Sanjay Udeshi & Co. for the Petitioner. Ms.Hutoxi Tavadia with Mr. H.V. Kode for Respondent No.1. ..... CORAM :DR.D.Y.CHANDRACHUD, J. June 19 , 2008. P.C.: Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the First Respondent waives service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. These proceedings under Articles 226 and 227 of the Constitution of India, arise out of an order passed by the Industrial Court at Pune on an application for interim relief. By the order that has 2 been impugned in these proceedings, the Petitioner has been injuncted from removing or shifting the machinery on which the workmen were working from the Akurdi Plant, save and except for the machines manufactured in the Tools Division of the Akurdi Plant until the decision of the complaint. 3. The First Respondent has instituted a complaint of unfair labour practices under Items 5 and 6 of Schedule II and Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 which is pending. The admitted position before the Court is that prior thereto an industrial settlement was arrived at between the management and the Union on 5th September 2003. The prefatory part of the settlement which defines the intent and object of the settlement inter alia provides as follows: “In order to increase the productivity and to have better quality products by utilising all available resources to make Akurdi Division economically viable, the Union agrees that the Company will continue to decide deployment, allotment of shifts, weekly-offs, paid holidays and transfer of workmen from one job/section/department/ division/plant to another as the case may be. The Union also agrees that the Company will continue to eliminate, change or consolidate 3 jobs/ departments and divisions and introduce new productive methods to establish and revise procedures and quality standards and also to effect technological development, improvement in work process, at its discretion which will lead to effective utilization of all resources with the intent to increase productivity and improve quality to make the Akurdi Division profitable.” Clause 1.2 of the settlement reflects an understanding that on account of a slowdown in the market and as a result of a drop in the market share of the company, the company would have to change its production targets, product mix, work methods and work practices. As a result, it was within contemplation that no work may be available for even the permanent workmen in certain areas and that there may be a marked reduction in the volume of work in certain other areas. After the Settlement of 2003, a notice was issued by the management on 22nd August 2007, followed by a further notice dated 31st August 2007 by which the Akurdi Plant was to be shut down for five days every week followed by a non-working day and workmen were offered wages for five and a half days without reporting for work. It is the case of the management that thereafter on 7th November 2007, an informal agreement was arrived at with the assistance of a Union 4 Minister under which the workers would be permitted to enter the factory. It is common ground that the workers are now being paid their wages since November 2007 though no production activities are going on in the factory. The management has sought to shift the machinery from the Akurdi Plant. By the impugned order passed by the Industrial Court on 29th April 2008, the management came to be restrained from removing or shifting the machinery in terms which are already noted above. 4. At the present stage, it has been urged on behalf of the Petitioner that there is no reason why the management should not be permitted to shift the machinery to other plants owned by the same management which are situated at Aurangabad, Chakan and Pant Nagar in the State of U.P. Counsel appearing on behalf of the Petitioner stated that save and except for certain machineries which had fallen into disuse and were already sold prior to the order of injunction, the machinery which is now proposed to be shifted to the three plants of the same management as noted above, would not be sold, but would be maintained by the management in a working 5 condition to aid the production activities which are carried out at the aforesaid plants until the complaint is disposed of. It was submitted that by permitting the management to do so, no prejudice would be caused to the Union since on the one hand, the wages of the workmen are being fully protected and the machinery would be kept in a running order. Learned Counsel stated that in respect of the machinery which was sold prior to the order of injunction, the management may be permitted to move the Industrial Court with documentary evidence. 4A. Counsel appearing on behalf of the workmen submitted that the Union would oppose any sale of machinery and urged that in any event no documentary evidence has been produced to the effect that any sale had taken place prior to the order of injunction. In so far as the prayer for shifting of the machinery is concerned, Learned Counsel submitted that the workmen are ready and willing, though no production activities are being carried out at Akurdi, to maintain the machinery at the existing plant at Akurdi. This, it was submitted, would meet the apprehension of the management that the machinery 6 is liable to fall into disuse and deteriorate in the absence production at the Akurdi plant. 5. Having heard Learned Counsel for the contesting parties, it is now an admitted position before the Court that no production activities whatsoever are being carried out in the Plant at Akurdi except the Tools Division. Apart from this agreed position, it is also an admitted position that the workmen are being paid their wages since the month of November 2007. Learned Senior Counsel appearing on behalf of the management has stated on instructions that the management agrees and undertakes to the Court that the payment of wages to the workmen shall continue and shall not be deviated from until every workman attains the age of superannuation. The undertaking which is tendered in these terms is accepted. 6. In so far as the question of shifting of machinery is concerned, keeping the machinery idle at the Akurdi Plant during the pendency of the complaint would neither subserve the interest of the management, nor for that matter would it protect the interests of the 7 workmen. Allowing the machinery to fall to disuse would in fact, gravely affect the restarting of the plant at Akurdi because machinery which has not been gainfully utilized in the meantime may deteriorate. The plea which has been urged on behalf of the Petitioner that the machinery be permitted to be shifted to the three other plants owned by the Petitioner itself, subject to the condition that it shall not be sold, transferred or encumbered, would subserve the interests of justice. This would be subject to the Petitioner filing an undertaking before the Court that in the event that after the hearing of the complaint, the Industrial Court directs the Petitioner to bring back the machinery, the Petitioner shall do so, subject to such orders as may be passed in a challenge to the order of the Industrial Court, by the appropriate forum. This condition, the Court is informed, is acceptable to the Petitioner. Counsel appearing on behalf of the Petitioner has stated before the Court that no equity shall be claimed by the interim workable arrangement under which the Petitioner is permitted to shift the machinery during the interregnum to the three other plants of the Petitioner. In the circumstances, the interim order passed by the Industrial Court shall stand modified and the following order shall 8 hold the field during the pendency of the complaint: (i) Conditional on the continued payment of wages to the workmen at the Akurdi Plant from month to month, in terms of the statement which has been made before the Court by Learned Senior Counsel appearing on behalf of the management, noted hereinabove, the management is permitted to shift the machinery presently lying at the Akurdi plant to any one of the three plants owned by the same management, namely, the Plants at Chakan, Aurangabad and Pant Nagar; (ii) The permission to shift the machinery shall be subject to the express undertaking of the management, to be filed before the Industrial Court within a period of two weeks from today, that: (a) The machinery shall not be alienated, encumbered or transferred to any third party; (b) No equity shall be claimed by the management as a result of the interim workable arrangement; and (c ) In the event that the management is directed by the Industrial Court to bring back the machinery in the final order that may be passed on the complaint, the 9 Company shall abide by the order of the Industrial Court, subject to its right to Pursue such remedies as are available to challenge the order of the Industrial Court; (iii) A statement containing the items of machineries removed from the plant at Akurdi under clause (i) above and the location to which the machinery is being shifted to either of the three plants of the Company noted above, shall be filed before the Industrial Court within a period of two weeks of the date of shifting with a copy to the Union; (iv) The management has agreed to furnish individual letters of intimation to each workman indicating the terms of the present order and the safeguards which have been imposed to protect the interests of the workmen; (v) In the event that the sale of any machinery which was not required for the running of the Akurdi Plant has already been completed prior to the order of injunction that was passed by the Industrial Court, it would be open to the Petitioner to move an 10 application before the Industrial Court with documentary evidence in support for permission to remove the machinery from the plant at Akurdi. Any such application, if moved, shall be considered on its merits by the Industrial Court. All the objections of the Union are kept open and shall be considered. 7. The hearing of the complaint is expedited. The Industrial Court is requested to hear and dispose of the complaint preferably by the end of December 2008. 8. The Petition is allowed to the aforesaid extent. There shall be no order as to costs. ......