1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1319 OF 2009 Siemens Ltd. & Ors. ...Petitioners (Original Respondents) vs. Siemens Workers Union ...Respondent (Original Complainant) Mr.P.K. Rele, Sr.Counsel i/b. Mr.P.N. Anaokar and Mr.Rahul D. Oak for the Petitioners. Mr.Sandeep S. Chaubal with Mr.Bennet D Costa for the Respondent. CORAM : V.M. KANADE, J. DATED : JULY 7, 2009 P.C. :- 1 Rule. Rule is made returnable forthwith. By consent of parties, petition is being disposed of finally at the admission stage. 2 By this petition, the petitioners are challenging the judgment and order passed by the 2 Industrial Court in Complaint (ULP) No.129 of 2007 whereby the complaint filed by the respondent - union was partly allowed and it is held that the petitioners herein are engaged in the unfair labour practice under Item 9 of the Act and the petitioners were restrained from assigning the regular work of workmen to the Officer Trainee. 3 The petitioner no.1 is a public limited company and engaged in the business of manufacturing of switchgears, switchboards, motors, etc and have 900 employees for the purpose of carrying out its day to day activities. The respondent is a registered trade union and is a recognized union under the provisions of MRTU and PULP Act (hereinafter referred to as the said Act) . Brief facts are as under :- 4 A complaint was filed by the respondent union alleging unfair labour practice under Items 9 3 and 10 of Schedule IV read with Section 28 of 30(2) of the said Act. It was alleged in the complaint that the petitioner nos.2 and 3 herein issued a notification dated 3.5.2007 wherein it was mentioned that there was vacant post in the category of Officer Trainee in the area of Manufacturing, Quality, Inspection & Testing, Logistics, Technical and Sales Order execution and the said post was that of a Junior Executive after completion of two years of training period. Grievance of the respondent in the complaint was that the said Officer Trainee who was required to be promoted to the management category was asked to the work of the workmen in addition to additional duties which were specifically mentioned for each post. The grievance of the respondent union was that by this process, the number of posts of workmen was reduced and the work which was available to workmen was taken away and given to Officer Trainee/Junior Executive resulting in reduction in the number of workers and decrease in the strength of the 4 registered union. It was alleged that this was clearly in violation of clause 7 of the Settlement dated 16th November, 1982. It was alleged that no notice under Section 9-A was issued by the company. It was alleged that as a result of new scheme which was introduced by the petitioner- company, the company had committed unfair labour practice under Items 9 and 10 of the said Act. The other grievance of the respondent was that clause 7 of 1982 had not been changed or amended and was binding on the company. Clause 7 of the said settlement clearly stipulated that the officer of the company would not do the work of a workman. Both the parties led evidence and the Industrial Court came to the conclusion that no notice of change was required to be given under Section 9-A of the Industrial Disputes Act and that the petitioner-company had not committed unfair labour practice under Item 10 of the Schedule 2 of the said Act. The Industrial Court, however, came to the conclusion that the new scheme was introduced by the management clearly 5 amounted unfair labour practice under Item 9 Schedule 2 of the said Act. Being aggrieved by the said judgment and order passed by the Industrial Court, the petitioners have filed this petition under Articles 226 and 227 of the Constitution of India. 5 Shri Rele, learned Counsel appearing on behalf of the petitioners submitted that the Industrial Court had erred in passing the impugned order since it had relied only on the settlement of 1982 and had not taken into consideration the subsequent settlements which had taken place between the union and the company which had overriding effect over clause 7 of 1982. He invited my attention to the settlement of 2004 wherein it was agreed that the company could take such steps for rationalization and improvement of plant and introduce schemes for increasing the production. He submitted that therefore, the settlement of 2004 has the effect of substituting the clauses as were 6 mentioned in 1982. Secondly, it was submitted that term Officer was referred in clause 7 represented a different category of officer as it existed at that time in 1982. He submitted that the said concept of officer used in clause 7 could not be treated on par with officers contemplated in the new scheme which was introduced by the management company. It was submitted that lot of change had taken place between the period from 1982 in terms of technology, new contract, etc and the company was offering promotional opportunity to its existing workmen. It was submitted that the union was stalling this process to maintain its hold over its members. It was submitted that the said scheme which was introduced by the company was optional and there was no compulsion on any workmen except the promotional avenue which was offered by the company. 6 Shri Choubal, learned Counsel for the respondent, on the other hand, invited my attention 7 to various clauses of 1982 settlement and the clauses in settlement of 2004. He submitted that in the first settlement of 1982, it was specifically agreed that the said settlement would continue to be in operation as long as it was not specifically cancelled for following the procedure prescribed under clause 16. He submitted that even in the clause of 2004 settlement, the company was under an obligation to give at least 70 days notice to the union before introducing a new scheme. He submitted that therefore, the contention of the company that there was reduction of work of the other workmen could not be accepted. He submitted that if the company was allowed to introduce the said scheme, it would have the effect of reducing the number of workmen who are working in the company. 7 I have heard the learned Counsel for the petitioners and the respondent, at length. I have given my anxious consideration to the submissions 8 made on behalf the petitioners and the respondent. The company had entered into a settlement dated 5.11.82. In Clause 5 of the said settlement, rationalization and improvement in plant equipments and techniques was introduced with the cooperation of the workmen and the union. Clause 7 of the said settlement reads as under :- that employees of officer or staff categories shall not be asked to do normal production work. Clause 12 reads as under :- THAT this settlement shall not be utilized for eliminating the future employment potential or promotional opportunities to the existing workmen. Clause 13 provided that the management would introduce a training programme to its workers to improve their skill knowledge and to impart advance training to workmen for incoming machines/technology and research and development of new products. 9 8 Clause 16 clearly laid down that except clause 14, all other clauses shall remain in operation until it is changed in accordance with the provision of law. It is evident, therefore, that the company had specifically entered into a agreement of settlement that the officer and staff categories would not do the production work. Subsequently, a fresh settlement was entered into between the company and the union dated 8.11.2004. The said settlement does not alter clause 7 of the settlement dated 16.11.82. It is not possible to accept the contention of Shri Rele, learned Senior Counsel appearing on behalf of the company that the said clause 7 had merged with the new settlement which is executed on 8.11.2004 or that the officer referred to in clause 7 of the agreement of 1982 was a different category of officers. In my view, therefore, perusal of the settlement dated 8.11.2004 does not alter or change clause 7 of the agreement of 1982 settlement. 10 9 The new scheme which has been introduced by the company clearly envisages that the Officer Trainees were required to do additional work which was specified in the said notification and under the said scheme, the workmen would be promoted to the post of the Junior Executive after he had successfully completed two years training programme and such a officer would be required to carry out additional duties over and above the duties of a workman. Though the post has been named as Junior Executive, the said post and category was different from the Junior Executive which was already in existence when the new scheme was introduced and as such, this category of Junior Executive was different from the category of Junior Executive which was already in existence. In my view, the Tribunal has rightly held that this amounted to unfair labour practice under Item 9 of Schedule 4 of the said Act. The submission made by Shri Rele, learned Counsel for the petitioners that the 11 Industrial Court had not taken into consideration the subsequent settlement of 2004 and other settlements which had taken place between the union and the company also cannot be accepted. The Industrial Court after having noted that there were subsequent settlements, however, rightly has come to the conclusion that the settlement dated 16.11.82 was still in force. The Industrial Court also has taken into consideration the admission given by the witness of the company that whatever work had to be given to the Officer Trainee was in addition to their present regular work which they were doing earlier and even though these workmen were promoted, they were expected to do the work of workmen along with some additional work. The Tribunal, therefore, has rightly held that there was breach of clause 7 of the settlement of 1982. The Industrial Court has given cogent reasons while partly allowing the complaint. No case is made out, therefore, for interfering with the impugned order passed by the Tribunal. 12 10 The petition, accordingly, is dismissed. Under the circumstances, there shall be no order as to costs. (V.M. KANADE, J.)