Allowed

Hindustan Lever Employees Union v. the Assistant Commissioner of Labour (Concilation) and Ors.

Bombay HC19 Jul 2005WP/2064/2005

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order by the Assistant Commissioner of Labour that closed conciliation proceedings. The Court held that the High Court consent order did not settle the entire dispute as it expressly kept questions of law and facts open, requiring the Commissioner to revive proceedings.

What did the court decide?

The petition was allowed, the order dated 2nd July 2005 passed by the Assistant Commissioner of Labour was set aside, and conciliation proceedings were revived.

Hindustan Lever Employees Union Vs the… — Pension and Retirement Benefits | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION (LG) NO.1756 OF 2005

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 Hindustan Lever Employees Union. .. Petitioner
 v/s.

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 1. The Assistant Commissioner of

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 Labour (Conciliation) & ors. .. Respondents

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 Mr.K.K.Singhavi, Senior Advocate with
 Mr.S.K.Talsania i/by Mr.Kiran S. Bapat for
 petitioner.

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 Mr.P.K.Rele, Senior Advocate with Mr.R.P.Rele and
 Mr.Vinod Tayade i/by Mr.Piyush Shah for res.No.3.

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 Mr.R.M.Sawant, Govt. Pleader for res.Nos.1 & 2.

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 -----

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CORAM : H.L. GOKHALE &
SMT.R.S.DALVI, JJ.

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DATE : 19th July 2005

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ORAL ORDER : (Per H.L. Gokhale, J.) :

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 1. This petition seeks to challenge the order

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 dated 2nd July 2005 passed by respondent
 No.1-Assistant Commissioner of Labour Mumbai,

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 whereby he held that the dispute raised by the
 petitioner-Union, vide its letter dated 7th
 December 2004 does not survive in view of the
 order dated 28th February 2005 passed by the High
 Court in terms of the consent terms filed before
 the High Court. The petition further seeks a stay
 of this order and the directions to continue the
 conciliation proceedings and then decide about the
 reference of the industrial dispute between the
 petitioner-Union on the one hand and respondent

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 No.3-Company on the other.

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 2. Respondent No.3 filed a reply to the
 petition to begin with and then to the amended
 Writ Petition. We have heard the petition finally
 at the admission stage. Counsel for the parties
 have made their submissions.

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 3. Brief facts leading to this petition are
 as follows:-

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 . Sometimes in the year 1989, respondent
 No.3 had proposed a lock-out. The
 petitioner-Union filed a Complaint under the
 Maharashtra Recognition of Trade Unions and
 Prevention of Unfair Labour Practices Act, 1971
 ("MRTU and PULP Act, 1971", for short) bearing
 Complaint (ULP) No.855 of 1989. That Complaint
 was allowed by the Industrial Court. A Writ
 Petition filed thereagainst was dismissed by a
 learned Single Judge and an Appeal therefrom was
 also later-on dismissed by a Division Bench.

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 4. Subsequently respondent No.3-Management
 decided to transfer its activities in the factory
 at Sewri, Mumbai to one M/s.Bon Limited. The
 petitioner-Union served demands on 7th December

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 2004. The schedule to those demands included four
 items. Firstly, a declaration that the
 re-organisation including transfer of the Factory
 at Sewri, which is a subsidiary, is not legal,
 genuine, not justified or bona fide. Secondly,
 the Management shall not transfer the workers to
 any such subsidiary without the consent of the
 workmen or Agreement. Thirdly, in the event, any
 such transfer takes place, the workmen of the
 Mumbai Factory should continue to remain as
 workers of respondent No.3 and lastly that
 respondent No.3 or its officers, agents,

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 successors and assigns shall give productive and
 gainful work and pay wages and other benefits to
 the workmen of the Factory at Sewri, Mumbai. The
 demands led to discussions before the Conciliation
 Officer. At that stage, the Management sought to
 enforce its decision. It led to filing of another
 Complaint being Complaint No.798 of 2004 by the
 petitioner-Union to the Industrial Court. An
 interim order was refused therein and, therefore,
 the petitioner-Union carried the matter to the
 High Court by a writ petition being Writ Petition
 No.269 of 2005. A learned Single Judge heard the
 matter and disposed it of by passing an order on
 28th February 2005 on the basis of the consent of
 the parties. The learned Judge recorded that it

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 was agreed amongst the parties that no further
 reasons be recorded than whatever were recorded in
 the order. It is this order which is the basis of
 the impugned decision of the Assistant Labour
 Commissioner. Therefore, it is desirable that we
 produce this order in its entirety. This order
 dated 28th February 2005 reads as under:-

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 " After the Petition has been heard,
 Learned Counsel appearing on behalf of the
 Petitioner and the Respondents are agreed
 that the following order may be passed by
 consent and without any further reasons
 being recorded.

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 Without prejudice to the rights and
 contentions of both the parties, the
 following arrangement is worked out:

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 (a) As and when the transfer of the Bombay
 Factory Undertaking at Sewri takes place
 to M/s.Bon Limited, the concerned workers
 would be given the option of being
 transferred along with the Undertaking
 subject to the conditions set out in the
 proviso to Section 25 FF of the Industrial
 Disputes Act, 1947.

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 (b) The Management reserves its rights to
 take steps in accordance with the
 Industrial Disputes Act, 1947, in respect
 of such of the workmen who do not get
 transferred with the Undertaking.

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 (c) The Assistant Commissioner of Labour
 shall take steps expeditiously to conclude
 proceedings pending before him with
 respect to the Charter of demands dated
 7th December 2004 in accordance with law;
 and

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 (d) All questions of law and facts are
 expressly kept open.

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 The Petition shall stand disposed of in
 the aforesaid terms with no order as to
 costs. "

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 5. After passing of this order by the learned
 Single Judge as mentioned above, respondent No.3
 filed a Special Leave Petition against the earlier
 referred order of the High Court passed on 28th
 December 2004 which was an order of a Division
 Bench, confirming the order of a learned Single

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 Judge in Writ Petition No.287 of 1995 arising out
 of Complaint (ULP) No.855 of 1989. This SLP came
 up for consideration before the Apex Court on 28th
 March 2005 when the Court passed the following
 order:-

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 " Issue notice.

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 Mr.Bharat Sangal, learned counsel accepts
 notice on behalf of the respondents.

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 Status-quo as on today shall be maintained
 regarding the possession and ownership as
 well as the present situation in the
 factory."

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 After the High Court passing the order dated 28th
 February 2005 in Writ Petition No.269 of 2005,
 Respondent No.3 moved an interim application for
 modification of the above order dated 28th March
 2005 passed by the Apex Court. That interim
 application in the SLP came up before the Apex
 Court on 9th May 2005 when the Court passed the
 following order:-

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 " The I.A. has been filed for
 modification of the order of status quo

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 passed by this Court on 28.3.2005. It is
 brought to our notice that on 28.2.2005
 parties agreed to certain terms before the
 Bombay High Court. We make it clear that
 the order of status quo as directed by us
 will be subject to order by the consent of
 the parties as recorded by the Bombay
 High Court on 28.2.2005.

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 Rejoinder, if any, may be filed within two
 weeks. List this petition for final
 disposal on any miscellaneous day. "

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 6. This application for modification was
 obviously filed to emphasize to the Apex Court the
 order passed by the learned Single Judge on 28th
 February 2005. As can be seen from the order of
 the Apex Court, the Court has noted the order
 dated 28th February 2005 in its order dated 9th
 May 2005. It has recorded that the parties have
 agreed to certain terms in that order before the
 High Court and thereafter, made it clear that the
 order of status quo passed earlier will be subject
 to the order by consent of the parties as recorded
 by the High Court on 28th February 2005. As
 narrated earlier, based on this High Court order,
 the Assistant Labour Commissioner has declined to

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 enter in conciliation by his impugned order passed
 on 2nd July 2005.

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 7. Mr.Singhvi, learned Counsel appearing for
 the petitioner-Union, submitted that there was no
 occasion for the Assistant Labour Commissioner to
 close the conciliation by the impugned order. The
 order of the Labour Commissioner clearly refers to
 the order dated 28th February 2005 of the learned
 Single Judge and his submission. If one looks to
 the order of the learned Single Judge, it cannot
 be said that it conveys that the dispute before
 the Assistant Labour Commissioner was to be
 closed. The petition was filed with an urgency by
 submitting that in the meanwhile the Management
 has proceeded to transfer the undertaking to this
 M/s.Bon Limited and that the transfer was bad in
 law. Mr.Singhvi did try to canvass that the
 Management could not have done it. However,
 having seen clauses (a) and (b) of the order
 passed by the learned Single Judge, it is not
 possible for us to accept this submission.

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 8. Mr.Rele, learned Counsel appearing for
 respondent No.3-Company, on the other hand, tried
 to contend that the Labour Commissioner was right
 in closing the conciliation. This submission also

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 cannot be accepted in view of clause (c) of the
 order passed by the learned Single Judge. It is
 material to note that the learned Single Judge was
 moved subsequently for clarification of the order
 dated 28th February 2005. On 9th March 2005, the
 learned Judge passed an order stating that the
 order dated 28th February 2005 was clear and there
 was no need for further clarification.

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 9. It is to be noted that in the meanwhile,
 respondent No.3 has proceeded to transfer the
 undertaking to this M/s.Bon Limited. Respondent
 No.3 has given a notice to the workmen that if
 they are inclined, they should join and if they
 are not so inclined, they should give in writing
 that they are not inclined to join. An affidavit
 in reply has been filed to this petition as well
 as the amendments which were granted therein. In
 the reply to the amended petition, it has been
 specifically stated that some 700 workmen have
 joined the new Management and have reported on
 duty. Some 40 workmen have given in writing that
 they do not want to join. As far as the other
 workmen are concerned, they have an option to
 inform that they are not so joining which they
 have to exercise by 5 p.m. today evening. If
 they do not exercise any such option, they will be

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 deemed to have continued under the new Management.

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 10. As far as the closing of te conciliation
 is concerned, Mr.Rele submitted that the order
 passed by the learned Single Judge took care of
 the entire dispute between the parties. In his
 submission, the arrangement provided in clauses
 (a) and (b) thereof contained a complete
 settlement of the disputes and, therefore, the
 Conciliation Officer was right in coming to the
 decision that he had arrived at viz. that there
 was no need to intervene in conciliation. In our
 view, the order passed by the learned Single Judge
 is quite clear. These clauses viz. clauses (a),
 (b) and (c) are agreed by the parties without
 prejudice to their rights and contentions. It is
 also stated in clause (d) that all questions of
 law and facts are expressly kept open and
 thereafter the petition was disposed of.
 Therefore, if the questions of law and facts were
 kept open, they were kept open for the
 conciliation which was specifically referred in
 clause (c). If the parties had agreed to conclude
 the controversy, they would have stated that the
 entire controversy and the disputes were settled.
 In that case, clause (c) would not have figured in
 the settlement. Clause (c) of this order clearly

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 means that the conciliation proceedings are
 surviving and the Conciliation Officer was
 expected to proceed with and conclude the same at
 the earliest.

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 11. Mr.Rele submitted that clauses (a) and (b)
 cover the entire controversy. However, when the
 learned Judge had used the term "arrangement"
 prior to these two clauses, it will have to be
 read as an interim arrangement pending the
 conciliation and further determination which is
 contemplated in clause (c). Thus, clauses (a) and
 (b) clearly mentioned that if the workmen are
 inclined to join the new Management, they can join
 it and if they do not want to join, it will be
 open for the Management to take necessary action
 under the law. At the same time, clause (c) kept
 the conciliation surviving. Effect of this will
 be that whereas the Management will be permitted
 to bring about re-organisation which it wants to
 bring about with immediate effect, the legality of
 this decision will remain under consideration
 before the Conciliator or before the appropriate
 Authority thereafter. Mr.Rele submitted that the
 dispute no longer survives. It is not possible to
 accept this submission. The workers will, as
 stated above, certainly join under the new

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 Management, if they want to join it but their
 submissions and demands are not given up which is
 clear from clause (d) of the order. They have not
 stated that they are giving up their demands with
 respect to the question of legality and with
 respect to the action taken by the Management.
 Therefore, the forum which is otherwise available
 to them under the law was kept open by the learned
 Single Judge under clause (c). In the absence of
 there being any specific agreement on the entire
 dispute, the learned Judge could not have closed
 that avenue to the workers. Result of this will
 be that in the event the matter is subsequently
 settled or decided either in conciliation or
 later-on before the appropriate Authority, the
 Management may as well succeed in it. However, if

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 it does not succeed, it will be open to the
 workmen, whose relationship is now terminated, to
 canvass that they have a right based on the
 termination being bad and illegal. Similarly if
 the transfer is held to be bad, the workmen who
 joined the new Management will be entitled to
 contend that they have a right to go back to
 Respondent No.3 and that the earlier Management
 must take up the undertaking from one to whom it
 is now transferred. In our view, the order passed
 by the learned Single Judge is, therefore, clear

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 and the Assistant Commissioner of Labour was in
 error in concluding the proceedings before him by
 declining to intervene.

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 12. In the circumstances, we allow the
 petition and set aside the order dated 2nd July
 2005 passed by the Assistant Commissioner of
 Labour, Mumbai, and revive the proceedings before
 him. He will decide the revived conciliation
 expeditiously as directed by the learned Single
 Judge under clause (c) of the order dated 28th
 February 2005.

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 13. Petition stands disposed of.

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(H.L. GOKHALE, J.)

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(SMT. R.S.DALVI, J.)

Hindustan Lever Employees Union v. the Assistant Commissioner of Labour (Concilation) and Ors.

Case brief

What is this about?

What did the court decide?

Hindustan Lever Employees Union v. the Assistant Commissioner of Labour (Concilation) and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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