1 W.P.No.3118.98 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3118 OF 1998 Dudganga Vedaganga Sahakari Sakhar Karkhana Ltd. ... Petitioner v/s The General Secretary, Shri Chhatrapati Shahu Sakhar Kamgar Sangh & ors. ... Respondents Mr.S.K.Talsania with Mr. Girish Kulkarni i/by Mr.S.R. Waghmare for the petitioner. Mr.P.P.Chavan for respondent No.2. CORAM: SMT.NISHITA MHATRE, J. DATED: 30TH AUGUST, 2010 ORAL JUDGMENT: 1. The petition has been filed against the order of the Industrial Court dated 21.1.1998. By this order the Industrial Court has allowed the complaint filed by respondent No.3 and has declared that the petitioner had committed an unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in 2 W.P.No.3118.98 short, M.R.T.U. & P.U.L.P. Act), by not implementing the consent terms dated 16.2.1989 under the settlement of 26.6.1992. The Industrial Court further directed the petitioner to implement those consent terms and the settlement within a period of three months i.e. on or before 21.4.1998. Aggrieved by this decision of the Industrial Court, the petitioner has approached this Court in its jurisdiction under Article 227 of the Constitution of India. 2. The facts in the present case are not in dispute. On 12.2.1982, respondent No.3 union was the representative union for the workmen employed with the petitioner under the provisions of the Bombay Industrial Relations Act (in short, B.I.R. Act). A charter of demands was submitted by respondent No.3, seeking permanency of 287 contract workmen. These demands were referred for arbitration under Section 73A of the B.I.R. Act to the Industrial Court by an order dated 3.11.1982. An award was passed by the Industrial Court rejecting the reference on 20.2.1986. Respondent No.3 union then filed Writ Petition No.1538 of 1986 challenging the award. The writ petition was disposed of in terms of the consent terms arrived at between the petitioner herein and respondent No.3 union. The petition was disposed of on 16.2.1989. It appears that the consent 3 W.P.No.3118.98 terms were not complied by the petitioner and, therefore, respondent No.3 preferred Contempt Petition No.68 of 1989. This petition was withdrawn on 7.8.1989 as this Court granted the petitioner an extension of time to comply with the consent terms. Despite this concession granted, the petitioner failed to comply with the consent terms. Consequently, a fresh contempt petition being Contempt Petition No.14 of 1990 was preferred by respondent No.3. Parties to the contempt petition i.e. the petitioner and respondent No.3 union entered into fresh consent terms regarding the compliance of the earlier consent terms filed in the writ petition. Respondent No.3 union, therefore, withdrew the contempt petition on 19.2.1990. These consent terms indicate that respondent No.3 union had accepted that the parties have settled the dispute amicably and, therefore, there was no need to proceed with the pending contempt petition. 3. Respondent No.2 filed Complaint (ULP) No.387 of 1989 on 18.11.1989 alleging that the petitioner had committed unfair labour practices under Items 5, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The complaint was also filed against respondent No.3 Union. It was contended that the consent terms dated 16.2.1989 filed in Writ Petition No. 4 W.P.No.3118.98 1538 of 1986 had not been implemented. The complaint was amended later and respondent No.2 union contended that the petitioner in collusion with respondent No.3 union granted permanency to 136 employees from the original list of eligible candidates and to 214 other persons whose names did not figure on the original list. A written statement was filed on 16.2.1996 by the petitioner pointing out that the consent terms had been complied and that respondent No.3 union had no grievance about the implementation of the consent terms. It was also contended that respondent No.2 was a stranger to these consent terms filed in the writ petition and, therefore, its contention regarding the non- implementation of the consent terms should not be accepted. 4. Another complaint i.e. Complaint (ULP) No.134 of 1995 was filed by respondent No.2 union against the petitioner under Items 5 of Schedule II and 5, 6, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The grievance in the complaint was that the fitment had not been granted to the employees in accordance with the settlement dated 26.6.1992. 5. By the order dated 21.1.1998, the Industrial Court held that the consent terms have not been fully implemented and, 5 W.P.No.3118.98 therefore, it was of the view that the petitioner had indulged in unfair labour practice under Items 5 and 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. 6. The main contention of Mr.Talsania appearing for the petitioner is that respondent No.2 Union could not have maintained the complaint (ULP) No.387 of 1989 at all since it had no locus standi; Respondent No.2 was not the union with which the petitioner had signed consent terms. According to him, once the petitioner and respondent No.3 which was the petitioner in Writ Petition No.1538 of 1986 had agreed that the consent terms had been complied and this fact had been accepted by this Court by permitting the withdrawal of the contempt petition, it was not open for the Industrial Court to deal with the matter afresh. The learned counsel submits that the Industrial Court could not have reopened the consent terms and ascertained whether the concerned workers had been made permanent when parties had agreed by virtue of the consent terms filed in the writ petition that in case there was any dispute, the same would be referred to the advocates for the parties and their decision would be accepted by the parties. He submits that in these circumstances the Industrial Court had erred in concluding that the petitioner had committed unfair labour practices. 6 W.P.No.3118.98 The learned counsel points out that the consent terms filed in Contempt Petition No.14 of 1994 had been signed by both the representatives of the petitioner as well as respondent No.3 Union. A list of the names of the workers who were to be absorbed as permanent workmen was mentioned. Respondent No.3 had agreed in the consent terms that the Union had no grievance about the non-compliance of the consent terms arrived at between the parties in Writ Petition No.1538 of 1986. The learned counsel, therefore, submits that the order of the Industrial Court is erroneous. He relies on the judgment of the Supreme Court in the case of Bajaj Auto Ltd. v/s Bhojane Gopinath D. & ors., reported in (2004) 9 SCC 488, to contend that a default in compliance with the consent terms would not necessarily constitute an unfair labour practice under item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. 7. Mr.Chavan appearing for respondent No.2 submits that Item 9 of Schedule IV stipulates that, when there is a failure to implement a settlement or an award or an agreement, the employer commits an unfair labour practice. He points out the judgment in the case of Petroleum Employees Union v/s Industrial Court, Maharashtra, reported in 1980 (0) AIJ-MH 112811, of the Division Bench of this Court in 7 W.P.No.3118.98 support of his contention that since the non-implementation of an agreement between the parties would also be covered by Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, the complaint would be maintainable. According to him, the consent terms must be treated as an agreement and failure to implement the same is an unfair labour practice. He further submits that the contention of respondent No.2 Union is that the workers who have been made permanent were not those who were involved in the reference. According to him, 567 workers have been denied the relief which they were entitled to under the consent terms arrived at in Writ Petition No.1538 of 1986 between the petitioner and respondent No. 3. He submits therefore that the order of the Industrial Court cannot be termed erroneous as the Industrial Court has considered whether the workers who, in fact, were involved in the reference had been made permanent. 8. There is no dispute that failure to implement an agreement would constitute an unfair labour practice on the part of the employer under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. However, in the present case, when the signatories to that agreement have signed the consent terms in Contempt Petition No.14 of 1994 indicating that the consent terms i.e. the agreement between parties which had 8 W.P.No.3118.98 been filed in the writ petition has been implemented. The Industrial Court could not have re-opened that issue at the instance of the third person i.e. respondent No.2 union. Unless the settlement/agreement itself had been challenged by respondent No.2 Union, the question of re-opening the issue as to whether the petitioner had in fact implemented the settlement would not arise when the respondent No.3 union has agreed that the consent terms filed in the writ petition had been implemented. 9. In my view, therefore, the Industrial Court has committed a serious error in declaring that the petitioner had committed an unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act in the facts and circumstances of the present case. 10. Clause (IV) of the operative order of the Industrial Court, relating to the implementation of the consent terms dated 16.2.1989, is set aside. 11. The petition is, therefore, allowed. Rule made absolute accordingly. 12. No order as to costs. ..... 9 W.P.No.3118.98 10 W.P.No.3118.98