1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 2408 OF 2008 Shramik Mahasangh. ... Petitioner. V/s. M/s. Cipla Ltd. & Ors. ... Respondents. .... Mr. Arshad Shaikh with Mr. Vinod Shetty for the Petitioner. Mr. Soli Cooper with Mr. P.B. Patel and Mr. Sanjay Udeshi i/b. M/s. Sanjay Udeshi & Co. for Respondent 1. .... CORAM : DR. D.Y. CHANDRACHUD,J. 11TH APRIL 2008. ORAL JUDGMENT :- The Petition under Articles 226 and 227 of the Constitution is directed against an interim order of the Industrial Court in a complaint of Unfair Labour Practices under the M.R.T.U. & P.U.L.P. Act, 1971, by which an application for the grant of interim relief was rejected. 2 Sixty-seven employees who were working in the establishment of the First Respondent at Vikhroli were transferred to Patalganga. A complaint of Unfair Labour Practices was instituted in which an order was passed by the Industrial Court on 14th November 2006. The management challenged the order of the Industrial Court and on 7th December 2006, after a considerable degree of discussion and negotiations between the parties, an order was passed by this Court in terms of a settlement that was arrived at. The order of the Court dated 7th December 2006 interalia contained the following provisions, which are material to the scope of the controversy which now arises before the Court :- “(v) The management has undertaken that the conditions of service of the employees who have been transferred from the establishment at Vikhroli to the establishment at Patalganga shall not be prejudicially altered; (vi)It has been agreed that the employees who are being transferred shall be allotted work in the general shift commencing from 8.30 a.m. or in the night shift 3 commencing from 11.00 p.m. After the lapse of a period of one year from the date on which the workers report at Patalganga, the management would be at liberty to consider allocation of the workers to any other shift. The management and the union will discuss the issue in advance; (vii) The management has agreed to enhance the re-location allowance payable to the workmen from Rs.500/- to Rs.750/- per month. However, it is clarified that the arrangements on account of transportation shall be made by the workmen themselves and/or by the recognized Union. In order to make arrangements for a centralized pick up and drop facility for the workmen at Thane and Dadar, the recognized union will endeavour to enter into an arrangement with the contractor if any, that the Company has engaged for providing hired buses to the Company. However, it is clarified that the arrangement in that regard including the arrangement for payment shall be entirely at 4 the cost and responsibility of the recognized Union. The Company has no objection to the use of the existing contractors by the Union for providing bus service. Out of 67 employees who were transferred from Vikhroli to Patalganga, the Court is now informed that the dispute is raised in relation to 59 employees who are working in various departments at Patalganga. The management has four shifts : (i)The first shift is from 7.00 a.m. to 3.15 p.m.; (ii)The second shift is from 3.00 p.m. to 11.10 p.m.; (iii)The third shift is from 11.00 p.m. to 7.10 a.m.; (iv) The general shift is from 08.30 a.m. to 5.00 p.m. It has been stated before the Court on behalf of the Petitioner that 36 out of the 59 employees have presently been 5 working in the first shift and in the second shift. In paragraphs 24 and 25 of the petition, certain individual cases of hardship have been referred to and the submission is that difficulties are faced by the employees in reporting particularly in the first shift which begins at 7.00 a.m. at Patalganga. It has been urged on behalf of the Petitioner that there are 13 other employees who have in fact agreed in writing to work either in the first shift or in the second shift and there is no reason why the management should not deploy these workmen in accordance with the choices indicated by them. The submission before the Court is that in breach of the provisions contained in clause 6 of the consent order, the management had not discussed the issue in advance with the Union of the allocation of workers to any other shift; the timings at Vikhroli were different; and there is no discussion in the order of the Industrial Court. On the other hand, it has been submitted on behalf of the Respondents that in addition to the amount of Rs.320/- which has been paid at Vikhroli on account of transport allowance, the 6 management agreed to pay an additional amount of Rs.750/- per month to the workers towards a re-location allowance as a result of the transfer from Vikhroli to Patalganga. It is has been submitted that on 28th January 2008, a notice was put up and thereafter, before the shift allocation took effect, discussions took place with the Union. There was, therefore, no breach of the consent order. Moreover, it has been submitted that necessary steps have been taken by the management to provide a bus from the factory to railway station so as to enable the workers to catch the last train which departs from Panvel and as a matter of fact, the workers are released well in advance even before the actual timing of the shift is to come to an end. It has been urged that while individual cases of hardship can be considered by the management, the workers are not employed on the basis of their place of residence. The settlement at Vikhroli contemplated that the management was entitled to change even the timings of the workers and both the standing orders and the orders of appointments empower the management to transfer the workmen from one establishment to the other. Hence, it is submitted that interference of this Court is not warranted particularly in this matter under Articles 226 and 227. 7 In considering the rival submissions, it would at the outset be necessary to recapitulate some of the salient aspects. On 7th December 2006, 67 employees were transferred from Vikhroli to Patalganga. Clause 6 of the consent terms arrived at before this Court envisages that for a period of one year these workers would be allotted work in the general shift commencing from 8.30 a.m. and in the night shift from 11.00 p.m. However, upon the lapse of a period of one year, the management was specifically at liberty to consider the allocation of workers to any other shift. The management however, was required to discuss the issue in advance with the Union. A re- location allowance of Rs.750/- was provided to the workers as and by way of transport allowance in connection with the transfers from Vikhroli to Patalganga. The earlier complaint of Unfair Labour Practices was disposed of in view of the settlement. The Industrial Court adverted to all these facets and came to the conclusion that prima-facie, since the employer was paying a transport allowance, it was for the workers to make necessary arrangements to reach the scheduled time of the commencement of the shift. Moreover, it was 8 noted that a Charter of demands was submitted by the Union and negotiations had already been commenced before the Labour Commissioner. In these circumstances, the Industrial Court declined to grant interim relief. Prima-facie, it would be impermissible for the Court to issue directions in regard to the allocation of workers to a particular shift. This is a matter of managerial discretion. The exercise of the writ jurisdiction under Article 226 or, for that matter, of the jurisdiction under Article 227 is not warranted. The order which has been passed by the Industrial Court cannot be regarded as having transgressed jurisdiction or as suffering from any error apparent on the face of the record. The submission that there was no discussion in advance, as contemplated in clause 6 of the consent terms, cannot prima-facie be accepted because the material before the Court would indicate that before the new allocations were implemented with effect from 4th February 2008, discussions had taken place with the Union on or about 29th January 2008. Consequently, before the notice dated 28th January 2008 was implemented, discussions took place. This has 9 been recorded by the management in a communication dated 1st February 2008 (Exhibit 'I' to the petition). Counsel appearing on behalf of the management has drawn the attention of the Court to the fact that in order to obviate hardship to workers who are required to work in the second shift which ends at 11.15 p.m., a bus facility has been provided so that the workers may board the last train which leaves from Panvel. In a situation where a large number of workers are employed, there are likely to be individual cases of hardship and it has been reiterated before this Court on behalf of the management that the management would consider if any individual workman had any specific case of hardship. This Court has also been assured that the management is not averse to consider the request made by 13 other workers who are willing to work in the first and/or the second shift. Counsel appearing on behalf of the management however contended and, in my view with merit, that it would not be open to the Union to dictate which workman should be deployed to which particular shift since that is an issue relating to the managerial discretion. Nor for that matter is it open to Court to interfere in such cases. Management of enterprises must be left by Courts to 10 managements. Mr. Cooper, learned counsel appearing on behalf of the management has stated that in order to establish its bona fides, the management has taken a decision not to take any disciplinary action on account of the inability of any worker to report as per the scheduled shift timings, effective from 4th February 2008 until the date of disposal of the present proceedings, by this order. For these reasons, I am of the view that save and except for recording the assurance of the management that individual cases of hardship would be duly and sympathetically considered expeditiously and that the concerned workman would informed, no case for interference and/or for the grant of directions under Articles 226 and 227 has been made out. The Petition shall accordingly stand dismissed. Parties would be at liberty to apply for the expeditious disposal of the complaint before the Industrial Court. 11 ------