Case: Bajaj Auto Limited Vs. State of Maharashtra Labour Department &amp; Others

3) The petitionerBajaj Auto Limited is a manufacturer of two wheeler and there wheeler automobile vehicles. The manufacturing activity is carried out at its plant at Waluj, Aurangabad. The petitioner contends that the members of respondent No.3 were given temporary, fixed term employment by the petitioner for the first time 18 years ago from the date when the third respondent Bhartiya Kamgar Kranti Sangathana put up its demand notice onThe appointments of the workers were made by the petitioner to meet the increase in demand arising out of market exigencies. This appointment was initially for a period of 7 months. The appointments were given to the persons on temporary basis on their applications who had accepted such temporary engagement in writing. At the end of each of these fixed terms periods the workers employment came to an automatic end, according to the petitioner. At no point of time the members worked for 240 days in any span of 12 consecutive calendar months. After the last employment of the members of the third respondent, all such temporaries kept silent for several years without raising any industrial dispute. None of them approached the Court of law in spite of they coming to know that litigation of the first batch of 1200 temporaries had started in the year 1997. The said litigation was much publicised one. It is stated that the said litigation ended in the judgment and order dateddelivered by the Apex Court. Thereafter, the members of the third respondent formed a Union and raised their demand ononly in order to take undue advantage of the Supreme Court judgment datedwherein compensation was granted to 185 workers. It is stated that after their last engagement which was about 12 to 18 year ago none of these temporaries ever worked with the petitioner.4) The petitioner replied to the demand letter of respondent No.3 by letter dated 23rd February 2004 rejecting the demand and pointing out that the members of the respondent No.3 were appointed for a temporary period which was already over.5) The matter thereafter went to the Deputy Commissioner of Labour Aurangabad and conciliation proceedings commenced. The second respondent made an order of reference of the dispute to the Industrial Tribunal at Aurangabad onThe petitioner filed Writ petition No.4520 of 2005 before a Division Bench of this Court challenging the aforesaid order of reference. By order datedthis Court quashed and set aside the order of reference and directed the Commissioner to reconsider the matter afresh. It was observed that both the parties are at liberty to submit their written submissions before the authority. It was made clear that this Court did not express any opinion on any of the issues sought to be raised in the matter and all the issues were kept open.7) The petitioner submits that pursuant to the said order the petitioner submitted his written notes of arguments and relied on several case laws and respondent No.3 also submitted its written notes of arguments. Respondent No.2 passed order of reference onThe said order of reference was again challenged by the petitioner in Writ Petit No.7269 of 2005. By order dated 23rd February 2006 a Division Bench of this Court, to which one of us (Naresh H Patil, J.) was a party, quashed and set aside the order of reference and remanded the matter to the Deputy Commissioner of Labour to consider the material placed before him by the contesting parties, afresh. It was observed that the Deputy Commissioner of Labour shall comply with the directions of this Court given in the earlier order in Writ Petition No.4520 of 2005. It was clarified that no detailed reasoned order was expected from the Deputy Commissioner of Labour but application of his mind and liveliness to issues raised by the parties should be briefly reflected on merits in the order. After the second remand the Deputy Commissioner of Labour passed the present impugned order on 21st March 2006.

Reasoning:
13) In para 5 of the petition the petitioner stated that out of 1366 temporaries 1348 seem to be temporary who were before respondent no.2 and the petitioner has record of 1299 temporaries at its disposal. The statement made by the petitioner shows that it is not the case that the petitioner has absolutely no record with them to contest the demand raised by respondent No.3Union or the individual workers. The contention raised on behalf of the petitioner that after lapse of so many years the petitioner company is handicapped to produce the relevant record or to support its case with the aid and assistance of such record does not seem to be convincing.14) It was submitted by the learned Senior Counsel that the petitioner is prevented to raise dispute regarding employeremployee relationship before the Industrial Tribunal in view of the terms of reference. We find that considering the reasoning adopted by the appropriate Government on the basis of the material collected and placed before it, the petitioner company is not prevented or precluded to raise such a dispute.15)The learned Senior Counsel appearing for the petitioner submitted that the contentions raised in the demand by individual workers or the Union are vague and ambiguous. What exactly is the demand of the workers and the ultimate prayer is not made clear. It was submitted that the demand is that the workers be given relief which was ultimately given to the earlier batch of workers by the Apex Court.We have perused the demand notice wherein we find that the workers have claimed that they be granted benefits of service like reinstatement, compensation as per the decision of the Honble Supreme Court of India declared onwithout prejudice to file detailed application under SectionA prayer is made that the petitioner company be directed to reinstate in service with full back wages by granting continuity and consequential benefits. The learned Senior Counsel submitted that a reference is made by the workers to the provision of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 alleging that the petitioner company had committed unfair labour practice. We have considered the relevant provisions of the Industrial Disputes Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. We find that in the 5th Schedule to the Industrial Disputes Act 1947 unfair labour practices are made part of the said schedule. The learned Senior Counsel has referred to Item 3 of Second Schedule to support the contention that for the relief of claim against discharge or dismissal and for relief of reinstatement the jurisdiction lies with the Labour Court. Considering the facts of the case and the demand raised coupled with the provisions of the Industrial Disputes Act and the Schedule appended thereto we are of the opinion that the Industrial Court could consider the reference having its wide powers as reflected from the provision of the Industrial Disputes Act 1947. We are, therefore, of the opinion that the appropriate Government did not commit any error of law in referring the dispute to the Industrial Court.16) The learned Senior Counsel sought to submit that there is lack of material pleadings in the demand raised by the Union and the workers. We find that the workers had furnished particulars of their appointment orders which indicate the date of appointment and the last date on which they worked with the petitioner company. The petitioner also questioned the locus standi of respondent No.3Union to raise demand. It was submitted that under the provisions of Section 10(2) of the Act of 1947 respondent No.3 Union does not represent majority of the workers of the petitioner company. Thelearned counsel Shri. Prabhakaran for respondent No.3 states that the demand is not raised only by respondent No.3 Union but it was also raised individually.Therefore, the reference cannot be faulted on the question of locus standi of respondent No.3.17) The learned Senior Counsel Shri Cama laid much emphasis on the issue of delay in raising demand. It was submitted that the delay from 3 years to 18 years cannot by any stretch of imagination be considered to be reasonable and condonable one. There is absolutely no justification for raising demand after such a long lapse of period on whatsoever ground. In reply it was contended by the learned counsel Shri. Prabhakaran that on the ground of delay alone the order of reference shall not be set aside. The learned counsel tried to distinguish on facts the reported cases in Nedungadi Bank and Assistant Executive Engineer Karnataka (cited supra) while submitting that in the peculiar fact situation of the case the observations were made by the Apex Court. We have considered these cases and we find that on facts the ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or theWe find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Governmentrespondent NO.2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st MarchPerusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No.2 to reach his satisfaction for referring the dispute. Respondent no.2 filed additional affidavit in reply though on the last date of hearing stating therein:" I say and submit that I have gone through the recordproceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit datedunder the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on datedstrong objection was raised on behalf of the petitioner on the contentions raised in theWe will now turn to the reasons adopted by respondent No.2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No.2 along with case laws cited by the parties. Respondent No.2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under section 10 of the Industrial Disputes Act. It seems that respondent No.2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No.2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No.2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugnedFor the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court.