:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1034 OF 1995 1. Shri Shivaji Martand Khomane 2. Shri Shivaji Bhiku Shivankar 3. Shri Sudhir Janardan Lakare 4. Shri Subhash Shankar Swami 5. Shri Sham Yadav Dhamale 6. Shri Rajaram Hanumant Bhandare 7. Shri Ramkrishna Vitthal Anjan (Since deceased) by his heirs 7-A. Shalini Ramkrishna Anjan 7-B. Pravin Ramkrishna Anjan 7-A and 7-B both R/o S.No.1, Gawali Ali, Mudhwa, Pune 411036 8. Shri Sanjay Kisandrao Phulaware 9. Shri Kisan Bajirao Shelake 10.Shri Ramu Dagadu Tikone 11.Shri Sayaji Gopal Zagade 12.Shri Manohar Ramchandra Kodre 13.Shri Chandersing Babusing Pardeshi 14.Shri Sitaram Laxman Doiphode 15.Shri Vasant Ganpat Sasane 16.Shri Jageshwar Kalu Pardeshi 17.Shri Shivamurat Ishwasdin Pande 18.Shri Hanumant Kaluram Hingane 19.Shri Gulab Jaganath Nawale 20.Shri Tulashiram Shankar Sabale 21.Shri Sopan Hambhau Kale 22.Shri Savdar Shenoy 23.Shri P.S. Surendran 24.Shri Madhukar Pandurang Karawade 25.Shri Shantaram Jagadale 26.Shri Vilas Gangadhar Deshmukh 27.Shri Chandrakant Prabhu Rachale 28.Shri Shivaji Yallappa Bhandari 29.Shri Ramesh Kapre 30.Shri Ramkrishan Vishnu Mite 31.Shri Tukaram Anant Sutar 32.Shri Ashok Ramchandra Rajurakar 33.Shri Ashok Narayan Ande C/o S.M. Khomane, 41/2, :2: Keshavnagar, Mundhwe, Pune 411 036 ..Petitioners Vs. 1. M/s. Diamond Clock Manufacturing Co.Pvt.Ltd., 59-B, Mundhwa, Pune 400 036 Through the Managing Director. 2. Maharashtra Barojgar Parishad C/o. Diamond Clock Manufacturing Co.Pvt.Ltd. 59-B, Mundhwa, Pune 400 036, Through the President. ..Respondents Mr. S.R. Nargolkar for petitioners. Mr. Rahul Kadam i/by Mr. Uday Warunjikar for respondent no.1. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : February 12, 2008. : February 12, 2008. : February 12, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. This petition arises from the judgment and order dated 28/11/1994 rendered by the Industrial Court at Pune thereby dismissing Complaint (ULP) No. 63 of 1992. The said complaint was filed under Items 5, 9 and 10 read with Section 28(1) of the M.R.T.U. & P.U.L.P. Act, 1971 (the Act for short). The said complaint was filed by 39 employees of respondent no.1-company. It was contended that since 4/2/1992 :3: the respondent no.1 had declared illegal lay-off for about two months and same was lifted thereafter and an agreement came to be signed on 20/2/1992 between the respondent no.1 and respondent no.2. A notice was displayed on 21/2/1992 informing the workmen that the said settlement was signed and thus workmen willing to accept the settlement by furnishing their written consent to the agreement were required to do so by 6/3/1992. It was also alleged that the respondent no.1 had informed some of the employees that they would be transferred to respondent no.2. A copy of the agreement was not made available and, therefore, by letter dated 25/2/1992 the complainant and 34 other workmen had requested for a copy of the said agreement to be made available. It was also alleged that on 1/3/1992 they had approached the Manager of the respondent no.1 to go through the said agreement, but the copy of the same was not made available. It was further alleged that respondent no.1 was in turn to sign a settlement and the said respondent had given oral intimation that if the workmen did not sign the said agreement, they were not required to come for duty from 7/3/1992 and it would be deemed that their services stood terminated. The complainant, :4: therefore, prayed for a declaration that the settlement/agreement dated 20/2/1992 was illegal and that the respondent no.1 be directed not to effect change in service conditions of its employees who did not sign the said agreement. 2. The respondent no.1 had filed Written Statement at Exh.C-6 and opposed the complaint. The respondent no.2 also filed Written Statement but thereafter did not contest the complaint. So far as the evidence is concerned, no one stepped in the witness box on behalf of the complainant and a pursis came to be filed that the documents submitted by the complainants be only taken into consideration (Annexures A to G), whereas oral evidence was adduced on behalf of the respondent no.1 of CW 1 - Shri Balkrishna Ramchandra Yavatkar and respondent no.2 did not participate in the trial of the complaint and remained absent after filing Written Statement. Items 5, 9 and 10 of Schedule IV of the Act read as under:- 5. To show favouritism or partiality to one set of workers, regardless of merits. :5: 9. Failure to implement award, settlement or agreement. 10. To indulge in act of force or violence. 3. Signing of the agreement dated 20/2/1992 between respondent no.1 and respondent no.2 could not be said to be any act of showing favouritism or partiality to one set of workers and, therefore, the Industrial Court was right in holding that there was no case of unfair labour practice made out under Item 5 of Schedule IV of the Act. It was not in dispute that the workmen of respondent no.1 had joined the Union of which Shri R.B. Sharmale was the President and he was also a Managing Trustee of respondent no.2. The evidence of CW-1 indicated that there was recession faced by the product of the respondent no.1-company and he did not have any orders. Consequently production was stopped in November, 1991 and in February 1992 the respondent no.1-Company had received one order from the State of Assam for the :6: manufacturing of meters. The respondent no.1, therefore, contacted the Union, which in turn offered to take over the management of the Company and, therefore, both the parties approached the Maharashtra Berojgar Parishad. On 16/2/1992 a meeting was held and draft of the agreement was prepared which was signed by Mr. Vaidya as the Managing Director of respondent no.1 and Shri Sharmale, the Managing Trustee of the respondent no.2. The evidence also went to show that for the said meeting 75% of the workmen were present and Shri Sharmale had read over the draft to them and called upon the workmen to seek clarification of their doubts, if any. 4. The main challenge was to the agreement dated 20/2/1992 at Exh.C-13 and it was contended that the said agreement was illegal and it was being forced upon the workmen. It was more particularly contended that refusal to give a copy of the agreement amounted to an act of unfair labour practice. On perusal of the agreement, the Industrial Court held that the same would not be said to be against the provisions of the I.D. Act. The transfer of management of respondent :7: no.1 to respondent no.2 by itself could not be said to be an illegal act. It was contended by the workmen that the said agreement was signed in collusion between the respondents and with a view to withdraw/whittle down the legal rights of the complainants. The Industrial Court did not accept this proposition and noted that Section 25FF of the I.D. Act provided for compensation to workmen in case of transfer of undertakings, but in the instant case the agreement impugned was for transfer of management along with the workmen and the respondent no.2 was a body which was approached by both the parties i.e. the workmen through its Union and the respondent no.1. The agreement did not contemplate or did not state that all the workmen were proposed to be removed from service and they would get compensation as stated in Section 25FF. For these reasons the Industrial Court held that the complainants failed to make out a case of unfair labour practice against the respondents either under Item 9 or 10 of Schedule IV of the Act and the complaint was dismissed. 5. While admitting this petition, this court :8: referred to the scheme of Section 25FF and Section 25FFA and directed the respondent no.1-company to deposit within four months a sum equivalent to the retrenchment compensation, gratuity and all other legal dues with an interest at 18% thereon and the amount was directed to be invested in a nationalised bank. The amount has been deposited and the fixed deposit has been renewed from time to time. But at the same time, there was no further restraining order from implementing the agreement. 6. The substantial reliefs prayed for in the complaint read as under:- (a) The Respondent No.1 be directed to continue the complainants and the other employees, who have not signed the settlement, dated 20/2/1992 in its services. (b) The agreement dated 20/2/1992 be declared illegal and be quashed and set aside. (c) The Respondent No.1 be directed not to effect any change in service conditions/status :9: of the employees who have not signed the alleged agreement. 6. The Chief Executive of the respondent no.1-company has filed affidavit-in-reply in this petition and has pointed out that barring the 39 complainants, 78 workmen accepted the said agreement dated 20/2/1992 and their services stood transferred to respondent no.2 which is a registered Charitable Trust. Clause 13 of the agreement dated 20/2/1992 reads as under:- "13. A list of officers, staff and workers who are connected with the manufacturing division of Diamond Fare Meter of the company and working in the factory of the aforesaid company, is enclosed herewith at "Appendix B". Those persons, from Appendix "B", who have agreed to/approved of the present agreement and those who shall give consent/approval in writing to the same accordingly, services of all such persons have been transferred from :10: the company to the Parishad from the dated 21/2/92 and the employee-employer relation between the company and the said employee, has come to an end. No person is illegally removed from service by the Parishad; for the purpose of workmen retrenchment, gratuity and equivalent rules, the services put in by the aforesaid persons in the company shall be held continuous service, even after their services are transferred to the Parishad. If it is required to make retrenchment, then the company has to bear amount, out of the compensation amount, towards service for the period to the extent of February 1992; and amount for further period will have to be borne by the Parishad; wages, various allowances, being presently earned by any person and all the rights, benefits and facilities being presently enjoyed by them as well as all other direct and indirect benefits being received or which should be received under the employment, shall be continued even hereafter, without cutting (reducing) the same at all, and it shall be the responsibility of :11: the Parishad to keep continue/to keep in process the same. The Parishad shall implement all the necessary Labour Laws." . The said Clause clearly speaks of transfer of employees to the new establishment and without affecting their service conditions adversely. As per Clause 19, the Company had agreed to finance for procurement of raw materials by respondent no.2 for a period of six months so that the manufacturing activities would be re-started. I, therefore, do not find any case to hold that the said agreement was a threat to the employment of the complainants. On the contrary, the activities of respondent no.1 had come to a standstill from November, 1991 and on receipt of the order from the State of Assam it was decided to transfer the management of respondent no.1 to respondent no.2 Parishad and a vast majority of the workmen engaged by the respondent no.1 had consented for the same. By following the law laid down by a three Judge Bench of the Supreme Court in the case of Tata Engineering and Locomotive Co. Ltd. vs. Its Workmen [AIR 1981 SC 2163] [AIR 1981 SC 2163] [AIR 1981 SC 2163], it ought to be held that :12: the said agreement was just and fair. This is one more reason to hold that the Industrial Court was right in dismissing the complaint and challenge to the legality of the agreement dated 20/2/1992 was rightly rejected. No case was made out by the complainants as to how the said agreement/settlement was illegal or was tried to be forced upon the workmen. 7. Hence, this petition fails and the same is hereby dismissed. Rule is discharged but with no order as to costs. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)