Case: Prs Permacel Private Limited Vs. Johnson &amp; Johnson Employees Union (Permacel Division) &amp; Others

3. The petitioner claims that in August, 1999, they acquired Permacel Division of JohnsonJohnson Limited for a consideration in excess of Rs.29 crores. They entered into an agreement for acquisition of the undertaking wherein it was also agreed that petitioner would take over the services of the workmen who were employed in the said undertaking by the JohnsonJohnson. It is averred by the petitioner that despite dialouges and negotiations, a final settlement concerning the terms and conditions of the employment of the workmen could not be arrived at due to the unreasonable attitude of the workmen. This transfer of the undertaking itself was challenged by the Union which maintained that its members were workmen of JohnsonJohnson. This transfer was questioned on different grounds including a fraud on the workmen, who even filed a complaint before the Industrial Court terming the transaction as a sham one but the complaint was dismissed which order was challenged by the workmen in a writ petition filed before this court being Civil Writ Petition No.1312 of 2004 which came to be dismissed vide order dated 14th July, 2004. The workmen again preferred a review petition against the said order being Review Petition No.56 of 2004 which was dismissed and even appeal preferred against that order was also dismissed.The matter was taken upto the Supreme Court in SLP being C.R. No.4790 of 2006 which was subsequently withdrawn. There was promise in carrying on the business of the petitioner company still its production was adversely affected because of the attitude of the workmen. Hence at the instigation of respondent No.1, the workmen did not give production as per the machine capacities and the agreed norms of production and they did not accept directions and instructions of the supervisors and managers and indulged in indiscipline of various nature, all on the grounds that the petitioners managers and supervisor had no authority over them. As many as 30 workers gave such individual undertakings and joined work and balance 98 workers refused to give such undertaking and did report for work. It is further the case of the petitioner that some of the workmen who were employees of the JohnsonJohnson even resigned and were removed from the membership of the respondent No.1. The respondent No.1 union vide their letter dated 31st July, 2006 raised a dispute against both the petitioner herein and the erstwhile company JohnsonJohnson. The dispute related to furnishing of an undertaking and the working conditions. The workmen also persisted with their claim that the petitioner were not the employers of the workmen employed at the said undertaking. This stand was opposed by the petitioner claiming that the dispute wasand dispute in relation to employer and employee relationship had not been resolved and as such, the proceedings in furtherance to the notice dated 31st July, 2006 did not continue.4. During the pendency of the said demand letter, the workmen even filed writ petition before this court. The writ petition, being Civil Writ Petition No.2028 of 2006 came up for hearing before a Division Bench of this court and the same was dismissed vide order dated 29th August, 2006 which reads as under:"It is grievance of the petitioner that though they have raised a dispute before respondent No.1 is not taking steps to initiate conciliation proceeding.2) The petitioners earlier were contending that they were employees of M/s. JohnsonJohnson Ltd. And not of respondent No.3. The Industrial Court held against them. The Learned Single Judge, where the petition was filed, has rejected the contention. Appeal preferred before the learned Division Bench has been dismissed. The SLP filed has been withdrawn. In other words, the contention of the respondent No.4 that JohnsonJohnson Limited is their employer stands concluded.3) On behalf of the petitioners, the learned counsel submits that the order was taken by playing fraud on the Court. It is not for this Court to go into that issue. The petitioners are at liberty to take steps which they may be entitled to. If the matter is before the Conciliation Officer, the Conciliation Officer is bound to proceed according to law. Considering the earlier order of this Court, this would not be a fit case to exercise our extraordinary jurisdiction.4) The present petition stand dismissed.5) Parties to act on the authenticated copy."5. According to the petitioner, the respondent No.1s contention had not been accepted by any court including the Supreme Court where they withdrew the SLP which was against the order of Division Bench of this court passed in Civil Writ Petition No.1312 of 2004. After passing of the order dated 29th August, 2006, the conciliation proceedings progressed but resulted in filing of failure report which was submitted by Conciliation Officer to respondent No.2. Respondent No.2 thereafter passed the order dated 22nd June, 2007 referring the dispute for adjudication to the Industrial Court at Bombay. The appropriate Government, on the recommendations made by the Labour Commissioner, in whose view the settlement between the parties remained unsuccessful, referred the matter to the Industrial Court vide its order dated 22nd June, 2007. The dispute, as stated in the schedule to the said order, reads as under:"SCHEDULEWhether the M/s. PRS Permacel Pvt. Ltd., companys Notice dated 29.7.2006 is legal and justified and whether the action of the company pursuant to Notice dated 29.7.2006 is an illegalyou, what relief, are the workmen entitled toWhether the workmen are entitled for a direction to the company to allow workmen to perform their normal duties without insisting upon a pre condition that workmen should give/must sign assurance/undertaking for entry in to the said plant at Safed Pool, Andheri Kurla Road, Andheri (E),072 for performing their duties on and from 29.7.2006.Whether the workmen are entitled to full wages/salaries and all attendant benefits w.e.f. 29.7.2006."

Reasoning:
Despite giving such undertaking, the petitioner has not acted fairly. It is admitted that the demand letter was submitted to the Commissioner on 11.12.2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services which culminated into issuance of letter dated 11.2.2008 vide which the Assistant Commissioner of Labour refused to admit the matter in conciliation in regard to settlement between theregard to plea of fraud, they were granted liberty to take steps which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law. They have stated that they will continue to work as if the Petitioner is their employer as they have done continuously since 10th August 1999 but without prejudice to their plea in the other proceedings that they were and continue to be the employees of JohnsonJohnson Limited, as according to them, the transaction that took place was not legal. There are other legal proceedings pending between the parties before the appropriateis no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present Writ Petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competent forum. The short question that we need to consider is whether the order of reference dated 22nd June 2007 suffers from such a legal error that it is palpably without jurisdiction or is legallyis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. Thehas also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.