Case: Hindustan Lever Employees Union &amp; Another Vs. Hindustan Unilever Limited &amp; Another

correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case the ad-interim application was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which the ad-interim order could have been passed. The approach of the Tribunal amounts to ad-hocism and pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant of ad-interim relief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used for sub-section would only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant the ad-interim relief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. The ad-interim relief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seeking ad-interim relief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application for ad-interim relief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application for ad-interim relief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application for ad-interim relief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that the ad-interim application was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied.

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

Explanation:
0[ds]21. In Hotel Imperial (Supra) the Supreme Court while considering the dispute between three hotels and their workmen about conditions of labour, had occasion to consider the scope of powers of the Industrial Tribunal and in particular an interim or final determination of an industrial dispute and observed that the Tribunal has to confine adjudication to those points and matters incidental thereto. The Supreme Court considered the arguments on behalf of the appellants that the Tribunal was required to confine itself to adjudicating on the points referred and that question of interim relief was not referred to, the same could not be adjudicated upon. The Supreme Court observed that the word incidental thereto under Section 10(4) left no doubt that interim relief, where it is admissible can be granted as a matter incidental to the main question referred to the Tribunal without a specific and express reference.22. In the instant case, however, I find that the specific reference made is pertaining to the applicability of the settlement and whether pending the decision of the main reference, interim application being granted was justified. The Court considered that the word award could mean an interim or final award and if the Tribunal makes an award pertaining to some matters leaving others to be decided at the later stage, that would constitute an interim award, but these awards are not in the nature of interim relief because the Court decided part of the question in issue. Interim relief on the other hand is granted under Section 10(4) of the Industrial Dispute Act, with respect to matters which are incidental to the points of dispute under adjudication. I do not see how this decision comes to the assistance of Mr. Singhvi.23. Vide the impugned order, the Tribunal has effectively granted interim relief, for an application seekingrelief. The situation is unique inasmuch as an interim relief application dated 31st July, 2013 in the form of Exhibit G was already pending before the Tribunal. It is described as Application for interim relief / interim award. The application has gone to great lengths in analysing the financial reports of the company, setting out the settlement(s) which govern service conditions in its various plants and highlighted the fact that the November Settlement is not fair and proper since company has deliberately not granted uniform increase in wages for all the workers in the factory and that the workers covered by the Reference IDR No. 4 of 2013 were granted less wages than the workers in the tea plant.On a fair reading of the above prayers it is evident that what the employees union is seeking is an interim measure of payment of Rs.8500/per month effective from 1st October, 2012 and arrears. A detailed reply has been filed to the interim order on or about 13th March, 2014. An application,was filed soon after the reply was filed on or about 20th April, 2015. Exhibit 35 was filed by the company seeking a decision on maintainability of the reference as a preliminary issue. According to the company the union raised general demand vide letter dated 10th November, 2012 including one that the November Settlement should not be treated as a settlement under Section 18(3) under the Industrial Disputes Act. The Company contended that the November Settlement was signed under Section 12(3) of the Act before the Conciliation Officer and the settlement will be binding pursuant to section 18(3) of the Act. It was contended that the reference was not maintainable since the jurisdiction of Court had been questioned, it was not appropriate that the interim application should be taken up.26. Parties were heard on this application and after hearing parties the Tribunal concluded thatcould be decided along with application for interim relief. Parties were at liberty to lead evidence, if they so desired, in support of their contentions. This order was passed on 10th June, 2015. On 8th July, 2015 the union filed an application atwherein a grievance was made that the application for interim relief was filed on 31st July, 2013 and although two years had passed, hearing had not commenced. The Union adopted the contentions in the statement of claim and interim relief application, as if it was part of the application forrelief. It was contended that even if the company succeeded in the application for interim relief, the workman would be entitled to receive benefits. For almost three years, the workmen had not got a revision in wages and serious prejudice was being caused to them. Relief was sought by way of adinterim arrangement with the company and all benefits of November Settlement were sought for the workmen under the reference who would give productivity and other conditions without prejudice to the rights and contention of the parties.27. In the reply the company once again pointed out that preliminary objection had been taken, that the issue was still at large and that norelief should be granted. The Tribunal being a creature of the Statute and there being no provision, the application forrelief should not be entertained. At the material time no evidence was led by the union which should either have led evidence or filed a purshis declining the opportunity. The impugned order notices the fact that on 10th June, 2015 the Tribunal had passed an order that the interim relief application for deciding the issue on maintainability to be decided together and the parties would be granted opportunity to lead evidence. After dealing with the contention of the parties, the Tribunal was of the view that there was no bar to accept certain terms and conditions under protest. It referred to the three guiding principles for grantingrelief viz. prima facie case balance of convenience and irreparable loss. It had proceeded to hold that the failure of conciliation proceeding and disagreement on terms of settlement is itself proof that there was a prima facie case. It then held that the November Settlement affected some workers but the others deferred with the proposal and the terms of the new/ settlement and that the application seekingrelief was justified since the balance of convenience lay in favour of the workmen seeking such relief. It was contended that the members of the union were not getting special concession. Reference is made to world economy and the fact that inflation affects even these members of the union and that if relief is not granted irreparable loss of good livelihood of workers and their families would be the result. At the same time the employees who were accepting the November Settlement would enjoy all the benefits.The order grants interim relief because the direction contained in clause (ii) is to provide all the benefits of the November Settlement to the workman before the Tribunal till the adjudication of the reference immediately.(emphasis supplied).Thus effectively interim relief has been granted on an application forrelief. The tribunal seems to have lost sight of the fact that what the applicants had sought wasrelief till the decision of the interim application. The interim application and the objection to its maintainability i.e.were still awaiting consideration of the Tribunal. It was for the union to have filed its evidence or conveyed its decision not to lead evidence before the Tribunal. The Union did neither at the time it is another matter altogether that the company also did not lead evidence at the material time.29. Considering the fact that the impugned order virtually granted interim relief in the face of jurisdictional issue being raised, invocation of Writ jurisdiction of this Court in the facts of the case is justified. Normally in any matter of an interim order, interference in the Writ jurisdiction of this Court is not encouraged, however the facts in the present case are unique and to this extent it is useful to keep in mind the decision of the Supreme Court in Tayabhai Bagasarwalla v/s Hind Rubber Industries Pvt. Ltd. (1997) 2 SCC 443   which reiterates that the correct approach would be to decide the issue of jurisdiction at the earliest instance. Although that view was expressed in relation to Section 9A of the Code of Civil Procedure, in the instant case when the jurisdictional issue has been raised the Tribunal must decide that issue before embarking upon consideration of application for interim relief. This fact has been noticed by the Tribunal while passing order dated 10th June, 2015 and given the nature of pleading in the interim application and the reply, the Tribunal thought it fit to permit the parties to lead evidence in support of its contention giving much amount of data in particular on the financial well being of the company as against the reluctance to offer the same benefits of November Settlement to the workers in question. In this view of the matter it is difficult to understand the reasons for the Tribunal having passed the impugned order.30. The impugned order has virtually roughshod over the objections of maintainability raised by the company. The impugned order omits to consider the issue pertaining to the maintainability of the interim application is left undecided. Surely this was not the correct course that should have been adopted by the Tribunal. It was open to the Tribunal to expedite the hearing of the interim application, as also the issue of maintainability clubbed therewith, however, it chose not to do so.31. There is substance in the argument on behalf of the company on this aspect. I find that the order of the Industrial Tribunal is susceptible to misuse as in the instant case where the main reference remains pending along with the interim application and the objection of maintainability. In V. V. F. LtdOrs. vs. Sarva Shramik SanghAnr (supra), while considering the challenge to an interim order of the Industrial Court. An order allowing benefits to certain group of workmen who had not given up their rights to raise the demand on par with other workman who had entered into a settlement, after giving up their rights to raise demand during the currency of the settlement, was frowned upon by a Single Judge of this Court.32. In my view it was necessary in the interest of judicial discipline that the Industrial Tribunal refrained from passing any order on theapplication save and except for its rejection. The application for interim reliefs could have been taken up for hearing. The fact that the unions complaint of the interim application being pending for over two years and it used that period of delay as the reason for seekingorder in the same terms as the interim application met with the approval of the Industrial Tribunal. The impugned order clearly overlooks the fact that the union took no steps to comply with the order of 10th June, 2015. It did not indicate whether it wished to lead evidence nor did it file a closure purshis. Considering the conduct of the Union, passing of the impugned order was clearly not justified. No doubt the effect of the impugned order would be to provide certain benefits of workmen who were agitating the validity to the November Settlement. However, what they sought to do and what they have almost achieved is to reap the benefits of the November Settlement without having to accept the obligation there under. The onerous parts of the settlement are therefore sought to be avoided. 33. Moreover, the prayer in the application is to the effect that the company should give all benefits of the November Settlement to the workmen covered by the Reference. Whereas the prayer in theapplication is in two parts namely seeking the benefits while offering to comply with the other conditions in the settlement including higher productivity, all of which is stated to be without prejudice. The order itself omits to consider the obligation of the workmen to perform in productivity terms and in relation to the other conditions. The effect of the order is clear, all benefits of the November Settlement should be given to the union members immediately. Arrears are also required to be paid but in three installments but there is no direction requiring the workmen to perform in terms of the settlement. Thus workman are not obliged to meet the productivity levels contemplated in the settlement or comply with the other conditions, and that in my view is one more reason the impugned order cannot bethe present case reference had also been made to case of Grindwell Norton (supra) in which the Division Bench of this Court has held that interim relief applications are not barred by principles of res judicata or estoppel. While applying the ratio in Grindwell Norton (supra) it was submitted by Mr. Singhvi that merely because the application for interim relief was pending was no reason to refuse relief in the application forrelief. However, on facts of the case I find that this decision is of no assistance to Mr. Singhvi since the question here is not merely of maintainability of an application for interim relief but that of maintainability of an application forreliefs which relies entirely upon the averments in the application for interimshall be on an undertaking given by each of them that in case they fail in the claim made by them, they will refund the excess amount drawn by them and arrears. In my view, such an order will not be justified in the instant case, at the interim stage since it will put undue pressure on the employees. Moreover in the present case the Union had not opted to lead evidence initially and the tribunal has not yet had the opportunity to consider the merits of the case. Mr. Singhvi had placed reliance in the case of Dena Bank (supra) but that ruling was appropriate in the facts of that case but it is not applicable to the facts at hand because in the present case we are concerned with theorder being passed in terms of interim application without a full fledged hearing of the interim application and without considering the objection to maintainability. Mr. Singhvi placed reliance on the case of Bennett ColemanAnr. (supra) which also will be of no assistance to the Union in view of the view I have takenthe instant case the Union has questioned the companys contention that the settlement was one under Section 18(3).37. In National Engineering Industries Ltd. (supra) the Supreme Court was hearing the appeal against the judgment of Rajasthan High Court which held that a settlement arrived at Conciliation proceedings was binding on the workmen. While dealing with provisions of Section 18(3) of the Act, the Court found that a settlement arrived at in the course of conciliation with a recognised majority Union will be binding on all workmen of the establishment, even those of a minority Union or individual workmen, observing that there can be many splinter groups each forming a separate trade union and if every union having few members goes on raising a dispute, there will be multiple disputes with the State Government making reference again and again. The very purpose of settlement will be defeated. In the facts of that case a notice came to be issued on the proceedings and the reference was stayed on the grounds that there has been no progress made thereafter and even otherwise it found futile to allow the reference to continue after lapse of years. In the facts of the present case the maintainability of the reference has been called into question and a decision is yet been arrivedam of the view that there was no basis for imposing the terms of settlement on the company qua the contesting Union. In the course of his submission In Tata Sons Ltd. (supra) the Tribunal had considered the demands referred for adjudicationrecorded its reasons for not granting the same in the context of settlements placed on record, had considered overall comparable concerns of all demands and has given reasons independently holding that the demands were not justified. The Court found that the contention that the settlement cannot be considered to be fair and proper merely because they were accepted by majority, would not be accepted, and that the workmen who are employed by the company are wise enough to have accepted the benefits of the settlement considering all the facts. Quoting from Peico Electronics the Court observed that the Will of the majority workmen will have to be accepted by the petitioner Union and it cannot persist to have independent and separate adjudication of its own demands.39. In Steel Authority of India, the observations that a definite stand was taken by the employees that they had been working under the contractors and it would not be permissible for them to take a contradictory and inconsistent plea that they were also the workmen of the principal employer and it was impermissible in law to take a mutually destructive plea. In the instant case that is precisely what is sought to be done. In the course of proceedings before the Industrial Court the witness on behalf of Union admitted during the cross examination by the companies counsel that there were 535 workmen who participated in the election process and that limited representatives were authorised to engage in settlement talks on wage revision. Also in 2008 and 2012 also the settlement of wage revision was allowed following the same procedure. The witness further admitted that the settlement as arrived with the conciliation officer and that a corrigendum had been arrived at. The witness admitted that all 535 workmen participated in election process and the representatives so elected. Although Mr. Singhvi objected to the said evidence on the basis that it is hearsay. In National Textile Corporation (supra) Mr.Naik has correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case theapplication was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which theorder could have been passed. The approach of the Tribunal amounts toand pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant ofrelief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used forwould only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant therelief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. Therelief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seekingrelief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application forrelief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application forrelief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application forrelief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that theapplication was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied.