Dismissed

Aparna Anand Kadam and Ors. v. M/S. Aryl Pharmaceuticals and Anr.

Bombay HC9 Jan 2009LPA/174/2008

Case brief

AI extract

What is this about?

Appeal from a judgment dismissing a writ petition against an industrial court order finding no unfair labour practice by an employer offering voluntary retirement before closure. Bench distinguished Supreme Court precedent, held appellants waived benefits by not accepting the offer, and dismissed the appeal.

What did the court decide?

Letters Patent Appeal dismissed; no order as to costs.

Aparna Anand Kadam and Ors. Vs M/S. Aryl… — Pension and Retirement Benefits | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 LETTERS PATENT APPEAL NO.174 OF 2008
 IN

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 WRIT PETITION NO.8934 OF 2007

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 Mrs.Aparna Anand Kadam & Ors. .. Appellants

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vs.

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 M/s.Aryl Pharmaceuticals & Ors. .. Respondents

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 Mr.S.S.Pathak and Mr.T.R.Yadav for the appellants

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 Mr.Rahul Nerlekar for respondent nos.1 and 2

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CORAM: J.N. PATEL, &
 Smt.V.K.TAHILRAMANI, JJ.

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DATE: 9TH JANUARY, 2009

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 P.C.

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 1. Admit. By consent of learned counsel for

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 parties. Heard on merits.

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 2. The appellants have impugned the order passed

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 by member of the Industrial Court in Complaint (ULP)
 No.996 of 1999 which came to be dismissed by the
 Industrial Court by its order dated 16.08.2007 and the

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 order passed by the learned single Judge of this court
 in Writ Petition No.8934 of 2007 on 10.01.2008
 upholding the decision of the Industrial Court.

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 3. It is the case of the appellants that the
 respondent employer have indulged in unfair labour
 practices under items 5 and 9 of Schedule IV of
 M.R.T.U. and P.U.L.P.Act 1971, as they have

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 discriminated between employees who are members of the
 Union i.e. Bhartiya Kamgar Karmachari Mahasangh and
 employees who are not members of the Union by offering
 non members a better package on closure.

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 4. It is the case of the appellants that they were

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 misled by the employer making an offer of voluntary
 retirement without indicating that the employer
 proposes to declare closure and, therefore, though the
 appellants have received their statutory dues to which
 they are entitled on closure, they are paid less than
 the employees who have opted for Voluntary Retirement
 Scheme.

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 5. It is the contention of the learned counsel
 appearing for the appellants that this amounts to

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 unfair labour practice as it is discriminatory and
 employer have been partial to employees who are not
 members of the Union, and, therefore, they are entitled
 for the same compensation package which has been given
 to employees who were not members of the Union and
 opted for Voluntary Retirement Scheme.

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 6. The learned member of the Industrial Court
 examined the case and found that the company offered
 Voluntary Retirement Scheme to all the employees i.e.
 member or nonmember of the Union which scheme was
 closed on 31.03.1998 and subsequently, declared closure
 and paid the legal dues of the employees, and,
 therefore, the appellants could not claim the same
 benefits which were availed by employees who opted for
 Voluntary Retirement Scheme and dismissed the
 complaint.

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 7. The petitioners/appellants challenged the order
 by filing Writ Petition under Article 226, 227 of
 Constitution of India. The learned single Judge
 examined the issue and found that it cannot be said
 that the employer has indulged in any Unfair Labour
 Practice and for that reason it cannot be held that the

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 employer was guilty of favouritism and partiality while
 dealing with these employees and dismissed the
 petition.

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 8. We find that the learned single Judge has not
 committed any error or illegality in dismissing the
 petition impugning the order passed by member of the
 Industrial Court. It is not disputed that on
 30.03.1998 respondent employer gave notice to the Union
 as well as its employees which was duly published and
 offered 50 days compensation per year of service as
 package to workmen which offer was available till
 31.03.1998 and all those workmen / employees who
 accepted the offer by opting for the same got the
 benefit.

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 9. The learned counsel appearing for the appellant
 submitted that the workmen who were members of the
 Union were misled in the matter as there was no
 indication given that the employer is likely to go for
 closure and further in absence of any evidence being
 led by the employer before the Industrial Tribunal, the
 Industrial Tribunal ought to have drawn adverse
 inferences against the employer. We find that this

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 submission of the learned counsel for the appellant
 cannot be accepted for the simple reason that the very
 notice dated 30.03.1998 which is placed on record
 clearly indicates that the employer made this offer by
 making it very clear that as they have suffered heavy
 loss and being not manufacturing any products of their
 own, they wanted to close down their unit and it was
 out of sheer humanitarian ground that the offer was
 being made in the nature of settlement. The Union and
 Employees who were members of the Union in their wisdom
 elected to resort to their statutory rights rather than
 accepting the offer by way of settlement.

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 10. It is further not disputed that on closure the
 appellants and other members of the Union got their
 legal / statutory dues to which they were entitled on
 closure and therefore, it cannot be said that they have
 been treated with partiality as nobody prevented them
 from accepting the offer given by the employer and they
 chose to agitate their rights by resorting to statutory
 provisions. In so far as the legal/statutory dues are
 concerned, they have no grievance in the matter.

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 11. The learned counsel for the appellants drew our

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 attention to the decision of the Supreme Court in the

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 case of State of Orissa and Ors. V. Orissa State

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Handloom Development Employees Union and Another
reported in (2004) 13 SCC 29 and submitted that the
 Supreme Court granted relief to employees placed in a
 similar situation on closure of the Unit run by the
 respondent in that case ie. Orissa State Handloom
 Development Employees Union. We find that this
 decision does not help the appellants in any manner as
 at no stage the appellants sent acceptance of the offer
 and showed their willingness to accept the same and,
 therefore, now they cannot turn back and claim benefits

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 which were given to workmen who accepted the offer.
 Therefore, we do not find any merits in the L.P.A. The
 same is dismissed accordingly. There shall be no order
 as to costs.

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(J.N. Patel, J.)

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(Smt.V.K.Tahilramani, J.)

Aparna Anand Kadam and Ors. v. M/S. Aryl Pharmaceuticals and Anr.

Case brief

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What did the court decide?

Aparna Anand Kadam and Ors. v. M/S. Aryl Pharmaceuticals and Anr.

Case brief

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What did the court decide?

What the court decided

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