Case: Siemens Ltd Vs. Siemens Employees Union

its propriety. If a scheme for such reorganization results in surplusage of employees no employer is expected to carry the burden of such economic dead weight and retrenchment has to be accepted as inevitable, however unfortunate it is... (para 14, page 1341 of the report) 32. In the instant case no malafide has been alleged against the appellant-company. Nor it is anybodys case that as a result of reorganization of its working pattern by introducing the scheme of promotion any person is either retrenched or is rendered surplus. 33. In the given situation, this Court cannot appreciate how by introducing the scheme of promotion to which the workers overwhelmingly responded on their own can it be said that the management has indulged in unfair labour practice. 34. Similarly, in the case of Hindustan Lever Ltd. v. Ram Mohan Ray and others reported in 1973 (4) SCC 141 , another three-Judge Bench of this Court held that nationalization and standardization of work by the management by itself would not fall under item 10 of Schedule IV of Industrial Disputes Act unless it is likely to lead to retrenchment of workers. Relying on the decision in Parry (supra) this Court held in Hindustan Liver (supra) that since the reorganization has not brought about any change adversely affecting the workers and there has been no retrenchment, similar principles are applicable here. 35. Mr. K.K. Venugopal, learned Senior Counsel appearing for the union in support of his submission relied on a decision of this Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay reported in 1985 (3) SCC 371. In that case the question which was considered by this Court was where an employee was performing multifarious duties and the issue is whether he is a workman or not the test to be applied is what was the primary, basic or dominant nature of the duties for which the workman was employed. This Court came to the conclusion that when the primary and basic duties of an employee are clerical but certain stray assignments are given to him to create confusion, the Court may remove the gloss to find out the reality. 36. In Arkal Govind Raj (supra) the aforesaid question arose out of the termination of service of the appellant Govind Raj as his termination led to an industrial dispute. In that dispute numerous primary objections were raised by Ciba Geigy and one of them was that Govind Raj was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In that context, this Court, after analyzing the evidence, came to a finding that Govind Raj was a workman within the meaning of the Act and held that neither the Labour Court nor the High Court came to a correct finding. With that finding this Court remanded the matter to the Labour Court for deciding the dispute in accordance with its judgment. The said decision has no bearing on the issues with which we are concerned in this case. It is well known that the ratio of a decision has to be appreciated in its context. Going by that principle, we do not find that the decision in Arkal Govind Raj (supra) is of any assistance to the respondents. 37. Mr. Venugopal also relied on the commentary of K.D. Srivastava on Law Relating to Trade Unions and Unfair Labour Practices in India (Fourth Edition). The learned counsel relied on a decision of the Allahabad High Court in the case of L.H. Sugar Factories and Oil Mills (P) Ltd., v. State of U.P., (1961) 1 LLJ 686 (HC All). Some of the observations made in the said judgment which have been quoted in the commentary of K.D. Srivastava are as follows:- ...If an employer deliberately uses his power of promoting employees in a manner calculated to sow discord among his workmen, or to undermine the strength of their union, he is guilty of unfair labour practice. (page 402) 38. In the instant case no malafide has been alleged by the union against the appellant-company in the matter of reorganization of its work. It is also nobodys case that as a result of the reorganization of the work any attempt is made by the appellant- company to create discord amongst the workmen so as to undermine the strength of the union. Apart from that the facts in the case of L.H. Sugar Factories (supra) are totally different. In L.H. Sugar Factories (supra) the company wrongfully deprived ten workers of their promotion to the post of driver-cum-assistant fitter while preferring eleven other workmen over them. This led to an industrial dispute. Therefore, those observations of Allahabad High Court in a totally different fact situation are not attracted in the present case to make out a case of unfair labour practice. We fail to appreciate the relevance of the aforesaid decision to the facts of the present case. 39. At the same time it is not the case of the respondent-union that its recognition is in any way being withdrawn or tinkered with. Nor is it the case of the respondent-union that it is losing its power of collective bargaining. It may be that the number of workmen is reduced to some extent pursuant to a promotional scheme to which the workmen readily responded. But no union can insist that all the workmen must remain workmen perpetually otherwise it would be an unfair labour practice. Workmen have a right to get promotion and improve their lot if the management offers them with a bona fide chance to do so. In fact if the order of the High Court is upheld, the same will go against the interest of erstwhile workmen of the appellant-company who have responded to the scheme of promotion. 40. For the reasons aforesaid, we are of the view that the High court failed to have a correct perspective of the questions involved in this case and obviously came to an erroneous finding. 41.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is true that this Court normally does not upset a concurrent finding but there is no such inflexible rule. The jurisdiction of this Court under Article 136 is a special jurisdiction. This is clear from the text of the Article itself which starts with a non-obstante clause. This is a jurisdiction conferring residual power on this Court to do justice and is to be exercised solely on discretion to be used by this Court to advance the cause of justice. This Article does not confer any right of appeal on any litigant. But it simply clothes this Court with discretion which is to be exercised in an appropriate case for ends of justice. Therefore, there can be no hard and fast rule in the exercise of this jurisdiction. Just because the findings which are assailed in a special leave petition are concurrent cannot debar this Court from exercising its jurisdiction if the demands of justice require its interference. In a case where the Court finds that the concurrent finding is based on patently erroneous appreciation of basic issues involved in an adjudication, the Court may interfere. In the instant case the Court proposes to interfere with the concurrent finding for the reasons discussed hereinbelow28. Admittedly, the finding of unfair labour practice against the appellant-company by the High Court and the Labour Court is based on the premise that the appellant-company acted in breach of clause 7 of the agreement. It is well known that an industrial settlement is entered into between the management and labour for maintaining industrial peace and harmony. Therefore, any attempt by either the management or the workmen to violate such a settlement may lead to industrial unrest and amounts to an unfair labour practice. Here the charge of unfair labour practice against the appellant-company is that it has violated item 9 of Schedule IV of the Maharashtra Act. Item 9 has been set out hereinabove and the purport of item 9 is that any failure to implement an award or settlement or agreement would be an unfair labour practice. In the instant case while considering clause 7 of the said settlement the Courts have not taken into consideration clause 12. Both clauses 7 and 12 have been set out hereinabove. If a harmonious reading is made of clauses 7 and 12 it will be clear that clause 7 cannot be given an interpretation which makes clause 12 totally redundant. Clause 7 contains a prohibition against the employees or officers or members of the staff of the appellant- company from doing normal production work. But that cannot be read in such a manner as to nullify the purport of clause 12 which reserves the promotional employment potential of existing workmen. So in the instant case if by way of rearrangement of work, the management of the appellant-company gives promotional opportunity to the existing worker that does not bring about any violation of clause 7 of the said settlement rather such a rearrangement of work will be in terms of clause 12. At the same time if some of job of executive officers are the same as is done by the existing worker that does not bring about such a violation of clause 7 as to constitute unfair labour practice.