Case: Prs Permacel Private Limited, Mumbai Vs. Johnson &amp; Johnson Employees Union &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. 1312/2004 which came to be dismissed vide order dated July 14, 2004. The workmen again preferred a review petition against the said order being Review Petition No. 56/2004 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 The matter was taken upto the Supreme Court in SLP being C.R. No. 4790/2006 which was subsequently withdrawn.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 July 31, 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 petitioners were not the employers of the workmen employed at the said undertaking. This stand was opposed by the petitioner claiming that the dispute was nonexistent and dispute in relation to employer and employee relationship had not been resolved and as such, the proceedings in furtherance to the notice dated July 31, 2006 did not continue.4. During the pendency of the said demand letter, the workmen even filed writ petition before this Court.

Court's reasoning:
It is admitted that the demand letter was submitted to the Commissioner on December 11, 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 February 11, 2008 vide conciliation in regard to settlement between theupon the order dated August 29, 2006 and a clarificatory order dated September 11, 2006 passed in Writ Petition (Lodging) No. 2028/2006 it is stated that the contention of respondent No. 4 in that writ petition averred that they were employees of Johnson and Johnson Limited stood concluded. In regard 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.The petitioner company had also issued a notice dated August 17, 2006 indicating various facets of the litigation in relation to transfer and problem of production and discipline. The consent letter which was required to be executed by the workmen was replied to by the union vide Exhibit "I" stating that they would not execute the same and later submitted the amended undertaking as mentioned above.According to the Respondent Union, the order of reference is proper and is within the four corners of law. The reference including the dispute ofis wide open and has not been finally concluded particularly in face of their plea that the orders were obtained by fraud. There is 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 competentis 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. The petitioner company has 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.