1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION LETTERS PATENT APPEAL NO. 30 OF 2010 IN WRIT PETITION NO. 1319 OF 2009 Siemens Ltd., Thane (W) – 400 601 & Ors. ... Appellants. (Original Petitioners). V/s. Siemens Workers’ Union, Gautam Arcade, Thane (East) – 400 603. ... Respondents. Mr. R.K. Rele, Sr. Advocate with Mr. P.N. Anaokar and Mr. Rahul D. Oak for the Appellants. Mr. K.K. Singhavi, Sr. Advocate with Mr. Bennat D’Costa for the Respondents. CORAM : ANIL R. DAVE, C.J. & S.C. DHARMADHIKARI, J. ORDER RESERVED ON : 22nd FEBRUARY, 2010. ORDER PRONOUNCED ON : 12th MARCH 2010. ORAL ORDER :- This Letters Patent Appeal is directed against the order of the learned Single Judge dismissing the Appellants’ Writ Petition. The Appellants’ Writ Petition was directed against an 2 order passed by the Industrial Court in Complaint (ULP) No.129 of 2007. The Industrial Court held that the Appellants are guilty of Unfair Labour Practice under Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act). That order was challenged by filing the present Writ Petition being Writ Petition No. 1319 of 2009. The Writ Petition having been dismissed by the learned Single Judge by his order dated 7th July 2009, that the present Letters Patent Appeal is filed. 2. Mr. Rele, learned Senior Counsel appearing on behalf of the Appellants submits that the finding of the learned Single Judge is erroneous. He submits that the learned Single Judge has relied upon a Settlement between parties. That is a Settlement of 1982. That Settlement has no application at all. There is a Settlement of 2004 and if that is the Settlement in force, then, reliance placed by the Respondents on the 1984 Settlement was without any foundation and basis. Inviting our attention to both Settlements, Mr. Rele submits that the Industrial Court concluded that the Appellants have committed an Unfair Labour Practice. However, the learned Member of the Industrial Court has misread and misconstrued the evidence on record. The learned Judge should have adverted to the cross examination of the Respondent’s witness by the Appellants Advocate. The witness has admitted that there are lot of changes in techniques, technological process, products, etc. Further, he has admitted that the Company is giving promotional opportunities to its workmen. The witness has 3 admitted that persons who have applied for the post of Officers/ Trainees were members of the Respondents till the year 2006. He has also deposed that only qualification is not sufficient but experience is necessary to perform a job. In such circumstances, according to Mr. Rele, the learned Member of the Industrial Court could not have concluded that the Appellants are guilty of an Unfair Labour Practice. Once, the 1982 Settlement is not applicable, then, Item 9 of Schedule IV to the MRTU & PULP Act, 1971 could not have been invoked. The learned Single Judge has also not considered this vital issue and his order is therefore erroneous and unsustainable in law. 3. On the other hand, Mr. K.K. Singhvi, learned Senior Counsel supported the impugned order. He submits that there are concurrent findings of fact. There is absolutely no error of law or perversity which would warrant interference by this Court in its jurisdiction under Articles 226 and 227 of the Constitution of India. Therefore, the Writ Petition has been rightly dismissed by the learned Single Judge. Mr. Singhvi has invited our attention to the Vacancy Notification, copy of which is at page 52 of the paper- book and contended that the qualifications for the post of “Officer Trainee” are set out therein. This is clearly a higher level supervisory post. Persons who have been appointed to fill up such vacancies could not have been called upon to perform the duties of workmen. In such circumstances, calling upon the members of the Respondents’ Union to perform such duties is nothing but a malafide attempt to reduce the number of unionised workforce 4 and this is a clear violation of the Settlement between parties. The 2004 Settlement does not supersede the 1982 Settlement and therefore, the learned Single Judge was right in confirming the order of the Industrial Court. Mr. Singhvi has invited our attention to the list of persons not eligible since they have S.S.C. Qualification (pages 315 and 316 of the paper-book) and submitted that if Clause 7 of the Settlement is perused, it is clear that on acceptance of the appointment as a Trainee Officer, the settlement with workman will cease to apply. Therefore, only after Clause 7 is complied with that the person will neither continue to be member of the union of workman nor represented by the workers’ union. These are the terms of the employment as Officer Trainee. For all these reasons, he submits that there is no reason to interfere with the impugned order and the Appeal should be dismissed. 4. With the assistance of the learned Senior Counsel appearing for the parties, we have perused the impugned order and the Writ Petition so also the order of the Industrial Court. The only controversy before the Industrial Court and the learned Single Judge was whether the Respondents have made out a case of Unfair Labour Practice. The pleas in the complaint before the Industrial Court are that the Appellants had entered into a Settlement with the Union on 16th November 1982. Clause 7 of the Settlement states that employees of Officer or Staff categories shall not be asked to do the normal production work. However, the management is committing the breach of the settlement and 5 more particularly, the subject stipulation wherein the employees of Officers/Staff grade are being directed to do the work of workmen. The job classification was agreed between parties. However, the vacancy notification displayed on the Display Board of all Units mentions the relevant details which demonstrate that these Officers/Trainees will do the job of the employees employed in Switch Board Unit of the Company. Therefore, the work that is being done by the workman will be performed by the persons in management/staff cadre. By doing so, there is a breach of the Settlement. Breach of any Settlement is covered by Item 9 of Schedule IV of MRTU & PULP Act. 5. In the Written Statement of the Appellants filed before the Industrial Court, it was urged that after the 1982 Settlement, there have been other Settlements, which permit the Appellants to re-organize their manpower. Accordingly, employees would get opportunity to work in Officer cadre subject to successful completion of training period. Further, it was argued that the Union has agreed to job classification. Therefore, the Appellants can engage Junior Executives in the area of manufacturing quality, inspection and testing, logistics, technical and sales order execution etc. The Appellants urge that they are not guilty of any Unfair Labour Practice. They have admitted the Settlement dated 16th November 1982. However, they urged that it has lost its force due to several Settlements thereafter. Further, Clause 7 of that Settlement must be read in the context of the entire agreement which gives liberty to the Appellants to introduce changes from 6 time to time including improvement and economizing utilization of manpower and provide training programme etc. It was submitted that the better opportunities are being provided by the Appellants to deserving employees so that they do not loose interest in their job. 6. Both the Industrial Court and the learned Single Judge held that the new scheme which has been introduced by the Appellants clearly envisages that the Officer Trainees were required to do additional work which was specified in the Notification and under the said scheme the workmen would be promoted to the post of Junior Executives after successful completion of two years training programme. Such an Officer would be required to carry out additional duties over and above the duties of the workmen. The learned Single Judge as well as the Industrial Court found that subsequent Settlement do not alter Clause 7 of the Settlement dated 16th November 1982. Both rejected the argument that the subsequent Settlement alters the position as prevailing at the time of the Settlement dated 16th November 1982. Both rejected the argument of merger of 1982 Settlement with the subsequent Settlement. 7. On facts, the Single Judge found that there was an existing post of Junior Executive, in the Appellant – Company. However, the new scheme envisages promotion to the post of Junior Executive of the workmen. This category of Junior Executive was different from the existing category of Junior Executives. In 7 these circumstances, it is clear that the Appellants cannot call upon the Junior Executives now promoted to perform the duties and do the work which violates Clause 7 of the Settlement. These are findings of fact which are based on the evidence produced on record. We are in agreement with Mr. Singhvi, learned Senior Judge appearing on behalf of the Respondents that the Industrial Court and the learned Single Judge committed no error while holding that the Appellants are guilty of Unfair Labour Practice under Item 9 of Schedule IV of MRTU & PULP Act. The attempt of the Appellants is clear. The Industrial Court has held that the Union came before the Court with a case that merely by changing the nomenclature of the post, the Appellants are asking the Officer to do the work of normal production which is being done by workmen. This is apparent from the pleadings and the admission of the witnesses of the Appellants. Thus, whatever work has to be given to the Officers/Trainees is in addition to their present regular work as a workmen. Thus, even if they are promoted, they are doing the same work and some additional work. This would be in clear breach of Clause 7 of the Settlement dated 16th November 1982 and thus, an Unfair Labour Practice under the relevant Item. None disputes that the Notification issued by the Appellants can be implemented and posting done but while such posting, the Officers should not be assigned work of a workman. That having not been ensured in the exercise undertaken by the Appellants that the finding of Unfair Labour Practice has been recorded. 8 8. We find no infirmity or error committed by the learned Single Judge in refusing to interfere with the finding of fact rendered by the Industrial Court. In such circumstances, we are not impressed by the arguments of Mr. Rele, learned Senior Counsel appearing on behalf of the Appellants. 9. For the reasons afore-recorded, we are of the view that the order of the learned Single Judge requires no interference. Consequently, the Appeal fails and is accordingly dismissed but without any order as to costs. CHIEF JUSTICE (S.C. DHARMADHIKARI, J.)