1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8934 OF 2007 Aparna Anand Kadam & ors ..Petitioners V/s. M/s.Aryl Pharmaceuticals & anr. ..Respondents Mr.S.S.Pathak & Mr.T.R.Yadav, advocate, for the petitioners Mr.Rahul Nerlekar, advocate, for the respondents CORAM : B.H.MARLAPALLE, J. DATE : 10TH JANUARY, 2008 P.C. . Heard learned counsel for the parties. Petitioner along with co-workers, who were in employment of respondent No.1-company along with the Union by name Bhartiya Kamgar Karmachari Mahasangh had filed complaint (ULP) No.996 of 1999 and the said complaint came to be dismissed by the learned member, Industrial Court, Mumbai as per order dated 16th August, 2007. Hence, this petition. 2. There is no dispute that the employees who were working under respondent No.1 were 2 represented by an internal Union and their service conditions were governed by the settlement which was existing on 31st December, 1998. On or before 19th March, 1998, the employees submitted a letter to the respondent No.1-company stating that many of the workers of the said union have joined Bhartiya Kamgar Karmachari Mahasangh and therefore, a request was made not to negotiate or discuss or settle any dispute regarding any matter connected with their members with any other person or organisation henceforth. Around that time, the company had announced a Voluntary Retirement Scheme and 15 employees had responded to the same and their applications for VRS were accepted. The complainant-Union purportedly apprehended that the company may terminate services of the other employees and, therefore, filed complaint (ULP) No.320 of 1998. By an order dated 23rd March, 1998, the Industrial Court directed the Company not to terminate, discharge or dismiss the services of the employees without following due process of law. 3. The respondent No.1-company had 3 displayed lock out notice on or before 9th May, 1998 and the same was challenged in complaint (ULP) No.640 of 1998. Simultaneously, the company had also taken steps for closure by submitting intimations to the competent authorities and closure was effected from 10th July, 1998. Consequently, a third complaint came to be filed which was registered as complaint (ULP) No.795 of 1998 before the Industrial Court. In the said complaint the applications at Exh.U-2, U-8 and U-10 for interim relief were filed and the Industrial Court was pleased to direct the company not to remove or dispose of the plant and machinery until they pay the wages, other legal dues and compensation to the workmen. The payment and other legal dues was offered to the workmen listed in the said ANNEXURE Exh.'G'. This order was challenged in Writ Petition No.2281 of 1998 and same was disposed of by this Court on 21st December, 1998. The company deposited an amount of Rs.21,72,549/- in respect of the legal dues payable to 32 employees along with the details of such payment and the said details were also brought before the 4 Industrial Court by an application along with a cheque for the amount of Rs.21,72,549/-. The complaint was directed to be decided expeditiously. 4. While all these three complaints were pending, the Union filed one more complaint which came to be registered as complaint (ULP) No.996 of 1999 alleging unfair labour practise on the part of the company under Items 5 and 9 of Schedule IV of the MRTU and PULP Act, 1971. This complaint was filed on or before 28th September, 1999 and it claimed that the company had given a compensation of 65 days wages every year of service to 15 employees, but the same benefit was denied to 38 employees whose names were set out in Exh.'A' of the complaint. Therefore, the relief prayed for was for directions to the company to pay the balance so as to make 65 days wages for every year of service. The Industrial Court by Judgment and Order dated 16th August, 2007 has held that the complainant Union failed to prove unfair labour practise within the meaning of Items 5 and 9 of Schedule IV of the MRTU And PULP ACT, 1971. It is 5 also pertinent to note that the present petitioners were subsequently added as complainant Nos.1 to 3 by allowing an application as per the order dated 27th September, 2001. 5. At the threshhold, learned counsel for the petitioners submits that there was no voluntary retirement scheme and no document was placed on record in support of the company's contention that such scheme was announced. At the same time, it is the case of the petitioners that the benefit of VRS was used as temptation so as to remove all the employees. It is not in dispute that 15 employees were given compensation at the rate of 65 days wages for every year of service in addition to other legal benefits and the complaint was filed by the Union and the present petitioners for seeking the same relief. In fact, they had not responded to submit their resignations along with other 15 employees or to apply for the VRS. 6. Item Nos.5 and 9 of Schedule IV of the Act read as under :- 6 “Item 5 of Sch.IV – Senior helpers retrenched – Junior helper retained – Not the case of petitioners that there was partiality or favouritism in retaining juniors – Held that the complaint of unfair labour practice under Item 5 of Sch.IV fails.” “Item 9 of Sch.IV – Closure of an undertaking in the guise of lock-out – Permission of State Government required for closure – Following the decision in the case of S.G.Chemicals, 1986 I CLR 360, it is held that prima facie Item 9 of Sch.IV of the Act is attracted.” 7. Admittedly, the three complaints filed earlier were dismissed. It is obvious that no case was made out in the fourth complaint filed so far as Item No.9 is concerned. More so, when the company deposited an amount of Rs.21,72,549/-. It is also not disputed that the said amount was in respect of legal dues payable to 32 employees as per statement. 7 8. Therefore, it is required to be examined whether the impugned order is sustainable in respect of the allegations of the complainant's claim of unfair labour practise under Item Nos.5 & 9 of Schedule IV of the MRTU & PULP Act, 1971. 9. Though, none appeared in the witness box on behalf of the respondent-company, undoubtedly, onus of proving unfair labour practise as alleged was on the part of the complainant. Smt Aparna Anand Kadam had filed an affidavit on behalf of the 30 employees by way of her examination-in- chief. She was cross examined on the said affidavit. In paragraph four of the affidavit she had stated that there was no Voluntary Retirement Scheme, which was declared and/or got sanctioned, but it was only an act of discrimination and favouritism indulged in by the respondents, who have thus committed unfair labour practise by giving 65 days wages per year of service to 15 workers, who were working along with her and others, where as only 30 days wages per year of services were deposited for other 30 employees 8 including herself. At the first instance, it must be noted that employees tendering resignation did not require anybody's sanction. Consequently, in her cross examination she admitted that it is true that VRS was valid upto 31st March, 1998. She also admitted that the complainants, including herself, had not tendered resignations till the date of closure of VRS. She further admitted that the complainants had not submitted resignations as per VRS before 31st March, 1998. These admissions clearly go to show that the respondent had announced the VRS scheme in response to which 15 employees had responded and the remaining chose not to respond to the same. In such circumstances, it cannot be held that the employer was guilty of favouritism and partiality, irrespective of merits while dealing with its employees. It was a case where the employer had announced the VRS scheme and it was left to the choice of the employees. The learned Industrial Court was right in dismissing the complaint and holding that there was no case of unfair labour practise made out against the respondents. The reasoning set out in the impugned 9 order cannot be termed as perverse or grossly erroneous, so as to call for interference under Article 227 of the Constitution of India. 10. Petition is rejected summarily. (B.H.MARLAPALLE, J.)