1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.174 OF 2008 LETTERS PATENT APPEAL NO.174 OF 2008 LETTERS PATENT APPEAL NO.174 OF 2008 IN IN IN WRIT PETITION NO.8934 OF 2007 WRIT PETITION NO.8934 OF 2007 WRIT PETITION NO.8934 OF 2007 Mrs.Aparna Anand Kadam & Ors. .. Appellants vs. M/s.Aryl Pharmaceuticals & Ors. .. Respondents Mr.S.S.Pathak and Mr.T.R.Yadav for the appellants Mr.Rahul Nerlekar for respondent nos.1 and 2 CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. DATE: 9TH JANUARY, 2009 DATE: 9TH JANUARY, 2009 DATE: 9TH JANUARY, 2009 P.C. 1. Admit. By consent of learned counsel for parties. Heard on merits. 2. The appellants have impugned the order passed by member of the Industrial Court in Complaint (ULP) No.996 of 1999 which came to be dismissed by the Industrial Court by its order dated 16.08.2007 and the 2 order passed by the learned single Judge of this court in Writ Petition No.8934 of 2007 on 10.01.2008 upholding the decision of the Industrial Court. 3. It is the case of the appellants that the respondent employer have indulged in unfair labour practices under items 5 and 9 of Schedule IV of M.R.T.U. and P.U.L.P.Act 1971, as they have discriminated between employees who are members of the Union i.e. Bhartiya Kamgar Karmachari Mahasangh and employees who are not members of the Union by offering non members a better package on closure. 4. It is the case of the appellants that they were misled by the employer making an offer of voluntary retirement without indicating that the employer proposes to declare closure and, therefore, though the appellants have received their statutory dues to which they are entitled on closure, they are paid less than the employees who have opted for Voluntary Retirement Scheme. 5. It is the contention of the learned counsel appearing for the appellants that this amounts to 3 unfair labour practice as it is discriminatory and employer have been partial to employees who are not members of the Union, and, therefore, they are entitled for the same compensation package which has been given to employees who were not members of the Union and opted for Voluntary Retirement Scheme. 6. The learned member of the Industrial Court examined the case and found that the company offered Voluntary Retirement Scheme to all the employees i.e. member or nonmember of the Union which scheme was closed on 31.03.1998 and subsequently, declared closure and paid the legal dues of the employees, and, therefore, the appellants could not claim the same benefits which were availed by employees who opted for Voluntary Retirement Scheme and dismissed the complaint. 7. The petitioners/appellants challenged the order by filing Writ Petition under Article 226, 227 of Constitution of India. The learned single Judge examined the issue and found that it cannot be said that the employer has indulged in any Unfair Labour Practice and for that reason it cannot be held that the 4 employer was guilty of favouritism and partiality while dealing with these employees and dismissed the petition. 8. We find that the learned single Judge has not committed any error or illegality in dismissing the petition impugning the order passed by member of the Industrial Court. It is not disputed that on 30.03.1998 respondent employer gave notice to the Union as well as its employees which was duly published and offered 50 days compensation per year of service as package to workmen which offer was available till 31.03.1998 and all those workmen / employees who accepted the offer by opting for the same got the benefit. 9. The learned counsel appearing for the appellant submitted that the workmen who were members of the Union were misled in the matter as there was no indication given that the employer is likely to go for closure and further in absence of any evidence being led by the employer before the Industrial Tribunal, the Industrial Tribunal ought to have drawn adverse inferences against the employer. We find that this 5 submission of the learned counsel for the appellant cannot be accepted for the simple reason that the very notice dated 30.03.1998 which is placed on record clearly indicates that the employer made this offer by making it very clear that as they have suffered heavy loss and being not manufacturing any products of their own, they wanted to close down their unit and it was out of sheer humanitarian ground that the offer was being made in the nature of settlement. The Union and Employees who were members of the Union in their wisdom elected to resort to their statutory rights rather than accepting the offer by way of settlement. 10. It is further not disputed that on closure the appellants and other members of the Union got their legal / statutory dues to which they were entitled on closure and therefore, it cannot be said that they have been treated with partiality as nobody prevented them from accepting the offer given by the employer and they chose to agitate their rights by resorting to statutory provisions. In so far as the legal/statutory dues are concerned, they have no grievance in the matter. 11. The learned counsel for the appellants drew our 6 attention to the decision of the Supreme Court in the case of State of Orissa and Ors. V. Orissa State State of Orissa and Ors. V. Orissa State State of Orissa and Ors. V. Orissa State Handloom Development Employees Union and Another Handloom Development Employees Union and Another Handloom Development Employees Union and Another reported in (2004) 13 SCC 29 reported in (2004) 13 SCC 29 reported in (2004) 13 SCC 29 and submitted that the Supreme Court granted relief to employees placed in a similar situation on closure of the Unit run by the respondent in that case ie. Orissa State Handloom Development Employees Union. We find that this decision does not help the appellants in any manner as at no stage the appellants sent acceptance of the offer and showed their willingness to accept the same and, therefore, now they cannot turn back and claim benefits which were given to workmen who accepted the offer. Therefore, we do not find any merits in the L.P.A. The same is dismissed accordingly. There shall be no order as to costs. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.)