R JANARDHANA BABU vs. THE MANAGING DIRECTOR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 7TH DAY OF JULY, 2017

BEFORE

THE HON’BLE MR. JUSTICE B. VEERAPPA

WRIT PETITION NOS.37528-37730/2010 (L-TER)

BETWEEN:

since deceased by his legal representatives;

1(a). Smt. V. Kavitha,

w/o late R Janardhana Babu,

aged about 35 years,

1(b). Master J. Dhruva,

s/o late R Janardhana Babu,

aged about 10 years,

1(c). Baby J. Nivedita,

d/o late R Janardhana Babu,

aged about 4 years,

since 1(b) and 1(c) both are minors, represented by their mother and natural guardian,

2 Smt. Kavitha – 1(a) above named.

1(a) to 1(c) all are R/a No. 486, 6th Cross, Kuvempu Nagar, Ramamurthynagar, Bangalore-560016.

4 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049.

5 12. B.S. Shivakumar, s/o B S Sathyanarayan,

aged about 47 years, working as Technician, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049.

6 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

7 aged about 52 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

8 aged about 52 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

9 aged about 53 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

11 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049.

12 38. S Mahadev Singh, s/o Shankar Singh, aged about 54 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

13 42. M Damodhara Shenoy, s/o Subbaraya Shenoy, aged about 55 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

14 s/o K M Hussain, aged about 56 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

16 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

17 57. A Boraiah, s/o Andanappa, aged about 56 years, Working as Pharma Assistant Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

since deceased by his legal representatives;

61(a). Smt. Thulasi Kumari,

w/o late C J Venkatesh,

aged about 55 years,

61(b).Mr. V Madhukar,

s/o late C J Venkatesh,

aged about 28 years,

61(c).Ms. Sahana,

d/o late C J Venkatesh,

aged about 26 years,

61(a) to 61(c) all are r/a No., 17/3, 2nd Main Road, 1st Floor, Adarsha Nagar, Nagarbhavi Road, Bangalore-560072.

19 aged about 57 years, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

since deceased, represented by his legal representatives;

1(a) Smt. Roopa Krishna,

w/o late S Krishna,

aged about 47 years,

1(b) Ms. K. Divya,

d/o late S Krishna,

aged about 24 years,

1(c) Mr. K. Darshit,

s/o late S Krishna,

aged about 19 years,

1(d) Smt. Narayanamma,

Mother of late S Krishna,

aged about 78 years,

No. 1(a) to 1(d) all are r/a No. 10, G No.8 Street, Jougupalayam, Ulsoor, Bangalore-560008.

21 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

22 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

23 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

24 81. G Srinivasa, s/o Gurappa,

aged about 51 years, working as Pharma Assistant Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

25 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

26 s/o D V Melegowda, aged about 53 years, working as Pharma Assistant Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049.

27 Off Old Madras Road, Bangalore-560049

28 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

29 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

30 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

31 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

32 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

33 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

34 119. Fathima Mujeeb, d/o Amir Ahmed, aged about 55 years, Working as pharma Assistant, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

35 Devanahalli Road, Off Old Madras Road, Bangalore-560049

36 Working as pharma Assistant, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

since deceased by her legal representatives,

127(a). Joe Pereira,

Husband of late Flora Pereira,

Aged about 73 years

127(b). Mrs. Savia Ida Fernandes,

d/o late Flora Pereira,

Aged about 36 years,

127(c). Ms. Sheron Ingrid Pereira,

d/o late Flora Pereira,

Aged about 27 years

127(a) to 127(c) all are r/a No. 189, Igrez Vaddo, Siolin, Marna, Bardez, Goa - 503517

37 Off Old Madras Road, Bangalore-560049

38 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

39 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

40 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

41 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

42 Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

43 Working as pharma Assistant, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

45 Devanahalli Road, Off Old Madras Road, Bangalore-560049

46 Working as pharma Assistant, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

48 Devanahalli Road, Off Old Madras Road, Bangalore-560049

49 Devanahalli Road, Off Old Madras Road, Bangalore-560049

175(a) Smt. Kaushalya Sister of late G.G. surrender, Aged about 54 years,

175 (b) Smt. Lakshmi, Sister of late G.G. Surender, Aged about 49 years,

175 (a) to 175 (b) all are r/a Old No.9, New No.21, Balamuthu Street, Ellis Road, Anna Salai, Mount Road, Chennai-2.

since deceased, represented by his legal representatives,

50 177(a). Smt. R Bhagyalakshmi

w/o late Ramesh Gundegowda,

aged about 43 years,

177(b). R Ravindra,

s/o late Ramesh Gundegowda,

aged about 21 years,

177(c). R Hemanth,

s/o late Ramesh Gundegowda,

aged about 18 years,

177(a) to 177(c) all are r/a No. 251/14, 7th Main Road, 7th ‘A’ Cross, R.P.C. Layout, Vijayanagar, Bangalore-560040.

52 Off Old Madras Road, Bangalore-560049

Since deceased by her Legal Representatives;

185(a). Smt. Vijaya,

w/o late V Philip Mari,

aged about 54 years,

185(b). Salath Mary,

d/o late V Philip Mari,

aged about 35 years,

185(c). Smt. Deepa Mary,

d/o late V Philip Mari,

aged about 30 years,

185(d). Sri. Xavier,

S/o late V Philip Mari,

aged about 29 years,

185(a) to 185(d) all are r/a No. 45/1, 3rd Cross,

53 A.K. Colony, BSA Road, Bangalore-560005.

186(a) Smt. Jayalakshmi @ kasturi, w/o late Muniswamy Gowda, aged about 54 years,

186(b) Smt. Hemavathi, d/o late Muniswamy Gowda, aged about 37 years,

186(c) M Manjunath, s/o late Muniswamy Gowda, aged about 35 years,

186(d) M Srinath, s/o late Muniswamy Gowda, aged about 33 years,

186(a) to 186(d) all are r/a Koraloore Village, Kasaba Hobli, Hoskote Taluk, Bangalore District

54 Off Old Madras Road, Bangalore-560049

55 Working as pharma Assistant, Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049.

since deceased by his Legal representatives;

193(a). Smt. S Prescilla,

w/o late B B Prabhu Dev,

aged about 52 years,

193(b). Sri. P H Ravindranath,

s/o late B B Prabhu Dev,

aged about 27 years,

193(c). Smt. P H Nandini,

d/o late B B Prabhu Dev,

aged about 25 years,

193(d). Sri. P H Surendranath,

s/o late B B Prabhu Dev,

aged about 20 years,

193(a) to 193(d) all are Residing at No. 11/1, Webster Road Cross, Cox Town, Bangalore-560005.

57 Bangalore-560049

58 Glaxosmithkline Pharmaceuticals Limited, Devanahalli Road, Off Old Madras Road, Bangalore-560049

… PETITIONERS

(BY SRI SUBBA RAO SENIOR COUNSEL FOR SRI M. SUBRAMANYA BHAT, ADVOCATE)

AND:

The Managing Director, Glaxosmithkline Pharmaceuticals Limited, Represented by the Managing Director, Registered Office at Dr. Annie Beasant Road, Worli, Mumbai-400025.

... RESPONDENT

(BY SRI S.S. NAGANAND SENIOR COUNSEL FOR SRI B.C. PRABHAKAR, ADVOCATE)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON AWARD DATED 20.5.2010 IN I.D.NOS.36/2004 C/W I.D.NOS.37/2004 TO 237/2004 AND I.D.NO.242/2004, ON THE FILE OF THE II ADDITIONAL LABOUR COURT, BANGALORE VIDE ANNEXURE-Q, AS THE SAID COMMON AWARD SUFFERS FROM ERRORS OF LAW AND FACTS APPARENT ON FACTS APPARENT ON THE FACE OF THE RECORD, WHICH AFFECTS EXERCISE OF THE JURISDICTION OF THE LABOUR COURT IN PASSING THE SAID AWARD AND ETC.

THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PROUNOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

60 O R D E R

These writ petitions are filed by the erstwhile employees of pharmaceutical company called Glaxosmithkline Pharmaceuticals Limited, a multinational company registered under the Companies Act against the common award dated 20th May 2010 made in I.D.No.36/2004 and connected cases on the file of the Presiding Officer, II Addl. Labour Court, Bengaluru, dismissing the petitions filed under Section 10(4-A) of the Industrial Disputes Act, (‘Act’ for short) with cost of Rs.1,000/- each. I Brief Facts of the Case

61 petitioners, respondent Company has been manufacturing drugs and medicines and managing seven units, viz., (i) Worli (ii) Mulund (at Mumbai) (iii) Thane & (iv) Nasik (Maharashtra) (v) Ankaleshwar (Gujarath) (vi) Bengaluru & (vii) Mysuru (Karnataka)

62 petitioners who are workmen of the respondent company organized themselves into a trade union called M/s Glaxosmithkline Pharmaceuticals Employees Union and same was registered under the Trade Union Act and was recognized by the Management of Bengaluru plant and the said Trade Union had entered into several settlements with the management pertaining to revision of wages, dearness allowance and other allowances, besides other terms of employment and conditions of labour. The union had maintained cordial relationship with the Management and on account of that workers were responsible for building up the industry by contributing their best. The last settlement pertaining to revision of wages was signed by the union on 16.06.2001. The said settlement was a comprehensive settlement pertaining to revision of wage scales and various terms and conditions of service.

63 Beecham Pharmaceuticals which is also a multinational company. In the year 2001, one more company by name M/s Glaxo India Limited was merged or amalgamated and became M/s GlaxoSmithkline Pharmaceuticals Limited which is also a public company Limited. The said amalgamation was done in terms of the order passed by the High Court of Judicature at Bombay and also High Court of Karnataka, Bengaluru. On the said amalgamation, all the employees of the old company became employees of the new company with no change in their service conditions and approval was accorded for the said amalgamation by the High Court of Karnataka in October 2001 retrospectively with effect from 01.01.2001.

64 petitioners with the management expired on 31.10.2003 and therefore, new settlement was required to be negotiated and signed on or after 01.11.2003. The workmen represented by their union without suspecting any foul play submitted charter of demands on 17.09.2003. The union issued notice of termination of the settlement on 15.06.2001 and also submitted charter of demands to be considered after 01.11.2003.

65 and Mysuru and get production of its products by outsourcing the same. The management did not take union into confidence to discuss the matter when the charter of demands was presented. The management started prevailing upon the workmen to leave the services of the company by accepting the benefits of voluntary retirement scheme. The demand of the management was not acceptable to the petitioners.

66 for the management to seek permission of the appropriate Government under Section 25(o) of the ‘Act’. In fact, petitioners were not aware that what was done on 30.11.2003 was a closure of undertaking.

67 by the management, only 10 workmen out of 256 accepted that offer and applied for voluntary retirement scheme benefit prior to 12.12.2003.

68 female workmen to sign on the dotted line and make them to accept the voluntary retirement scheme introduced by the management without giving any clue to the workers. The management illegally closed down the manufacturing operations on 30.11.2003. Thus, there has been illegal closure of production by the management w.e.f. 30.11.2003.

The petitioners/workmen were entirely depending upon their job in the company. Once there was illegal closure, the workmen had no other alternative. They did not know as to what was the source for their earning in future. The workmen for their survival had to sign the voluntary retirement scheme forms at the dotted lines and submit the same to the management so that they could take whatever benefits were offered to them by the management. The entire action of the management is unsustainable and illegal. The submission of voluntary retirement scheme application forms was not voluntary act of petitioners/workmen. The action of the management

69 amounts to illegal termination of service of petitioners. It was further contended that workmen had to receive amount from the management on account of extreme financial crisis. They are entitled for reinstatement with full backwages, continuity of service and consequential benefits and they have no objection for adjustment of the voluntary retirement scheme benefits received by them towards the amount payable by the respondent company to the petitioners etc.

70 the management gave various benefits to the workmen. The voluntary retirement scheme dated 01.12.2003 and the application for the voluntary retirement clearly reveals that the workmen will raise no dispute with regard to voluntary retirement scheme or any other dispute at any time in future. All the workmen accepted the benefits without any objection or protest. It was further contended that the union expressed satisfaction with the voluntary retirement scheme concluding process and thanked the company by their letter dated 22.12.2003.

The management extensively discussed the future of the factory with Mr.Allampalli Venkataram and other office bearers of the union in 2003. One Mr. Krishna who was the President of the union during the year 2004 was not conversant with the facts of the case. It was further contended that the union had raised a dispute before the Conciliation Officer, Bengaluru on 27.05.2004. The management made elaborate submissions on 09.08.2004/ 28.08.2004. It was

71 further contended that each of the petitioners/workmen have opted for voluntary retirement scheme and received benefits extended under the said scheme and were relieved from service. It was contended that each of the petitioners having availed voluntary retirement scheme and received terminal benefits including voluntary retirement scheme benefits will not be a ‘workman’ within the meaning of Section 2(s) of the ‘Act’ and as such, the claim under Section 10(4-A) of the ‘Act’ deserves to be dismissed as not maintainable, etc.

II Issues and additional issues framed by the Tribunal

72 2. If so, whether the first party workmen are entitled for the relief as claimed in their respective claim petitions?

III Evidence and Documents of the parties

73 examined MW-1 to MW-8 and marked documents Exs.M.1 to M.1040.

IV Conclusion/ Award by the Tribunal

74 Accordingly, claim petitions were dismissed with cost of Rs.1,000/- each. Hence present writ petitions are filed by the petitioners for the relief sought for before this Court.

V Rival Contentions of the learned counsel for the parties

75 reveals that the management has violated the provisions of Section 33(2)(B) of the ‘Act’. The voluntary retirement scheme lodged is not voluntary. The entire plan was discussed at Mulund, Maharashtra. Implementation, strategy and timing- the objective is to achieve 25% trading profits of sales by 2004. He further contended that as per Annexures J-11 and J-12, minutes of meeting held on 26.09.2003, 22.10.2003 and the counter statement filed by the management is in utter violation of provisions of Section 2(cc) of the ‘Act’. He invited attention of the Court to the news item in ‘Business Standard’ that stoppage of production was not due to any reasons. When the management realized that the workmen would not fall to the bait of the management nor surrender to the various deceitful, coercive and questionable methods, it started using force and coercion to get rid of about 256 workmen. The workmen were entirely depending upon the job in the company and once there was illegal closure, the workmen

76 had no other alternative and they did not know as to what was in store for them in future. He further contended that the action of the management amounts to illegal termination of service of each of the 256 workmen. Same is contrary to the provisions of Section 2(ra) r/w V schedule of the ‘Act’. The entire action of the management is clear case of unfair labour practice. The workmen refused to sign the application form for voluntary retirement scheme at the dotted line. About 37 workmen were transferred by the management with malafide intention. When they refused to sign the form, the management threatened to transfer rest of the employees by issuing notice.

77 means and coercive action. He further contended that the management established the plant for manufacturing patented and other drugs at Bengaluru in the year 1970. From then onwards it made a rapid progress and earned fabulous profits. Infact, during the year 1970 it was a foreign company. During the year 1985, foreign company went public and the share having face value of Rs.10 was traded at Rs.80. When the dispute was raised and the company went public, the trade market price of the share was Rs.600 per share. He further contended that apart from coercion, physical threat and pressure the workmen including female were tortured day in and day out by the management and they were also humiliated. Under those circumstances, the workmen were compelled to sign at the dotted line. The inaction on the part of the management was illegal. Therefore, workmen were entitled for reinstatement. He also pointed out that workmen did not receive any amount from any extraordinary consequences

78 and they are entitled to full backwages and consequential benefits.

79 workmen in each of the meetings held and has further stated that the consensus could not be reached between management and the workmen regarding amount of voluntary retirement scheme benefit, the management announced compensation payable to the workmen who had rendered less than 20 years of service, more than 20 years of service and less than 30 years of service, and more than 30 years of service. The witness has also spoken about the early bird scheme announced by the management on 01.12.2003 and further recorded a finding that when the voluntary retirement scheme was announced on 01.12.2003, question of workers resorting to strike from 26.11.2003 to oppose voluntary retirement scheme does not arise. The witness further denied the suggestion that even thereafter workers continued their strike. His evidence is that what was suspended by the management w.e.f. 30.11.2003 was the production of Iodex, but not other business activity of the second party respondent. His

80 evidence would show that even after 30.11.2003 names of workmen and others (totally 256) were continued on the rolls of the second party company till the acceptance of voluntary retirement application and payment of voluntary retirement scheme benefits. The said finding is contrary to the evidence of MW-1 and further contended that there was no chance of resuming the production of work by the Bengaluru plant after 30.11.2003. The Labour Court has not considered the entire evidence of MW-1 and admission of the witnesses examined on behalf of the management. He further contended that 37 workmen who had been transferred have submitted their voluntary retirement application on 19.12.2003 after closure of company on 30.11.2003 and the appointment orders of each of the workmen contending transfer is closed is of no basis and such finding recorded by the Labour Court is without any basis. No document is produced by the management to prove the same.

82 management discontinued the production from 30.11.2003 and kept locked all production areas in the factory and announced voluntary retirement scheme on 01.12.2003. She also stated that on the advise of President Mr.Allampalli Venkataram, 86 female workers including herself signed the complaint dated 11.12.2003 addressed to the Labour Commissioner and other authorities alleging that the said female workers were harassed and forced by the management for taking voluntary retirement. He further contended that what was stopped by the management after 30.11.2003 was the production. The reason for stopping the production was that the factory was becoming financially unviable on account of stiff business competition. The said finding of fact recorded by the Labour Court is erroneous since it is not the case of the management that due to financial problem, they have not obtained any permission under Section 25(o) of the ‘Act’. The Labour Court has no jurisdiction to decide the said question. It is

83 between the management and the State Government. He further contended that Ex.W.5 was given by the union to the Management. The union protested the letter regarding outsourcing of products such as Iodex and Zental, Furoxone suspension, Furacin, Soluvale ointment jars etc. The union requested the Management to maintain status quo regarding outsourcing of the items. MW-1 in his cross examination stated that “now I see letter Ex.W.5. The workmen have sought status quo against outsourcing of another ten items. Ex.W.6 is the reply of the management to Ex.W.5. In Ex.W.6 we have rejected the request of the union regarding status quo for the reasons mentioned therein. It is not correct to suggest that the items mentioned in Ex.W.5 were outsourced only to show that plant has become unviable. In Ex.W.8, there is a mention of in house electronic news bulletin of the second party. In Ex.W.8 there is a mention of winding down operation of Mysuru and Bengaluru plants”. MW-1 further stated that,

84 “now I see Ex.W.4 minutes of the meeting and Ex.W.4(a) refers to the option. Now I see Exs.M.11 and M.11(a) refers to TS Explanation. Since all the options were vague the company decided to go for winding of the operations”.

85 do not remember that the production of Iodex was stopped from May to July 2003. Not correct to suggest that production of Iodex was stopped with a view to create uncertainty in the minds of the workers. I cannot say that production of Iodex was continued from September to November 2003. I was the plant incharge at Bengaluru during that period. Not to correct to suggest that I had knowledge about production of Iodex from September to November 2003. If the production is there, there must have been records from September to November 2003”. All these admissions made by MW-1 on behalf of the management have not been considered by the Labour Court.

86 justice. The evidence of MW-1 is that “it is true that these transfers were made during the pendency of voluntary retirement scheme. It is true that no work was allotted to all these first party workmen from 01.12.2003. The first party workmen were not ready to accept the voluntary retirement scheme as on 17.12.2003. We do not have manufacturing unit at Calcutta. There is only sales branch office at Calcutta. Even if the employees were to refuse the voluntary retirement scheme by 17.12.2003 we could not have given any work to them in Bengaluru. There was no chance of resuming manufacturing operation at Bengaluru branch after 30.11.2003”. M.W.1 further admitted that “it is stated in Ex.W. 30(c) suit for injunction that agitation started on 30.11.2003. I do not know how long agitation continued”. He further admits that “sections where machines were kept were also kept locked”. He further states that, they were ready to accept the voluntary retirement application of employees provided if they were

87 ready to give it. Voluntary retirement scheme was introduced in Bengaluru after closure of plants at Worli, Ankaleshwar, Mulnad. He further admitted that it may be none of the workmen were not paid additional benefit of `1 lakh.

88 Secretary on Ex.M.29”. The said material admissions made by M.W.1 on behalf of the management as per Ex.H.1 is not considered by the Labour Court. Therefore, the impugned judgment and award passed by the Labour Court is vitiated.

L-3 Management’s action plan to close 4 out of 7 units including Bangalore unit

Typed Copy of ‘L3’ L-5 Union’s letter dated 30/04/2003 protesting outsourcing several products L-6 Management’s Letter dated 05/05/2003 rejecting Union’s request to maintain status quo L-7 News publication in ‘Business Standard’ dated 07/08/2003 that Respondent was planning closure of Mysore and Bangalore

89 units L-14 Union’s letter to DLC dated 26/9/2003, raising dispute alleging threats of closure L-16 Management’s letter to Deputy Labour Commissioner dated 03/11/2003 denying allegations of threats of closure L-19

L-20 Union’s letter to DLC and also Commissioner of Labour dated 18/11/2003 stating the Management had stated that they will close down operations by end of November and close the factory be end of December but refusing to give the same in writing L-21 Union’s letter to the Management dated 20/11/2003 protesting repeated threats of closure. L-23 Union’s letter to the Management dated 24/11/2003 protesting plan of closure on 30/11/2003 and Mgt. refusing to give it in writing. L-27 Management’s complaint to Hoskote Police Station on 26.11.2003 alleging that workmen may start agitation L-28 Union’s complaint to Commissioner of

90 L-29 Police and Hoskote Police dated 26/11/2003 regarding management’s threats to employees L-36 Union’s letter to Commissioner of Labour dated 3/12/2003 that the Management has closed operations and forcing employees to take VRS L-37 Union’s letter to Commissioner of Labour dated 5/12/2003 complaining that Management has threatened to stop water, electricity and canteen to force the workmen to take VRS L-51 Union’s letter to Commissioner of Labour dated 19/1/2004 seeking copy of inspection report dt.12/12/2003 L-52 DLC’s letter to Union dated 24/1/2004 enclosing inspection report dated 12/12/2003

Typed copy of L-52 L-53 Copy of pages 5, 6 and 20 of Company’s annual report for the year 2003 wherein it is stated that mfg. operations ceased at Bangalore in November 2003 and Company

91 has built adequate stocks to meet demand till supplied from new sources commence. L-60 Management’s letter to chief Inspector of Factories stating that manufacturing activity ceased at Bangalore on 30/11/2003 and no manufacturing process was to take place in future. L-64 Management’s letter to Dy. Labour Commissioner stating that the company had decided to wind down operations at Bangalore L-76 Copy of page 80 of Company’s Annual report for the year 2005 L-78 Copy of page 4 of Company’s Annual report for the year 1999 L-79 Copy of page 12 of Company’s Annual report for the year 2000 L-80 Copy of two pages of Employee handbook, 1999 L-86 Copy of carton of product ‘Zentel’ L-87 Copy of a strip of product ‘Fefol-Z’ L-88 Copy of individual statements of workers before DLC during factory visit on 12.12.2003.

Typed copy of L-88 L-90 Copy of 10 page cover story in ‘Business India’ Magazine dated June 6-19, 2005 stating “The management came up with VRS schemes, which helped it to claim that, with no employees left, it had to sell off units. Despite opposition from workers, union leaders and not so gentle persuasive overtures from politicians, Nayak managed to bring down the work force……”.

93 with only the last option of winding down operations at site; Annexure-J12 minutes of the meeting dated 02.10.2003 stating management wish to proceed further with plans for brining operation at the site to an end; Annexure-J14 minutes of meeting dated 30.10.03 wherein management categorically informed union that they plan to stop production by 30.11.2003 and separate employees by 31.12.2003. The said material document is also not considered by the Labour Court.

Annexure Evidence L-8 Copy of Management’s in-house news bulletin “In the News Today dated 8/8/03 plan to close Bangalore and Mysore plants

94 L-11 Management’s letter dated 16/9/2003 with list of products L-13 Union’s letter to the Management dated 24/9/2003 L-22 Caveat application moved by Management on 20/11/2003 L-38 Copy of minutes of Union General Body meeting held on 8/12/2003 L-54 Copy of minutes of Union office Bearers meeting on 21/03/2004 L-57 Management’s submission to DLC dated 28.8.2004 L-58 Copy of Annexure 8 of settlement dated 16/4/1997 L-59 Copy of page 2 of settlement dated 15/6/2001 to show that NPC was not discussed L-61 Letter from Drugs Control Department dated 21/5/2003 with enclosure to show that Drug license was surrendered L-62 Copy of bottle label on “Iodex’ manufactured in May’ 04 at contract manufacturer

95 L-63 Copy of Management’s letter to the Union regarding protected workmen L-65 Copy of Management’s letter to the Union dated 30.4.2004 in reply to demand notice L-66 Copy of written arguments filed by the Management before DLC in conciliation proceedings L-67 Copy of Management’s letter dated 3.12.2003 to Mr. M.V. Sanjeevapa showing VRS amount L-68 Copy of Management’s letter dated 3.12.2003 to Mr. M. Sreenivasaiah showing VRS amount L-69 Copy of Management’s letter dated 3.12.2003 to Mr. N.E. Sampath showing VRS amount. L-70 Copy of charge sheet cum suspension order sent to Mr. M.S. Srinivasa Kamath L-71 Copy of pages 4 to 7 of Company’s House Magazine dated November 2001 L-72 Copy of Page 3 of Company’s House Magazine dated September 2003

96 L-73 Copy of Order passed by Government of Karnataka granting permission to the Union to prosecute the Management. L-74 Copy of Page 5 of long-term wage settlement dated 23.11.2004 applicable to workmen of Thane plant L-77 Copy of objection statement filed by Management before DLC and Conciliation Officer dt. 29.1.2009 L-82 Copy of long-term settlement dated 19.5.1980 defining workmen: L-83 Copy of Company’s VRS Scheme applied to workmen at Worli Plant in 2001 L-84 Copy of Company’s VRS Scheme applied to workmen at Mulund Plant in 2003 L-85 Copy of letter of Deputy Labour Commissioner dated 12.2.2004 to show that conciliation was pending L-89 Copy of Page 9 of long-term wage settlement dated 15.6.2001 L-91 Copy of VRS benefits made applicable at Company’s Ankleshwar plant in 2002 L-92 Copy of letter dated 1/12/2003 given to Management by Mr. N. B. Krishna Prasad

97 L-93 Copy of Annexure-8 of long-term wage settlement dated 16.4.1997 L-97 Copy of Management’s letter dated 11.2.2004 to Office Assistant Mr. Papanna L-98 Copy of statement of accounts in respect of office assistant Mr. Papanna L-99 Copy of computation sheet along with Form-16 in respect Chemist Ms. S. Shylaja L-100 to L-103 Copies of annual increment letters in respect of Office Assistant Mr. Papanna for the year 2000 to 2003 L-108 Copy of pages 1 to 55 of original minutes book maintained by Union L-109 Copy of Service Certificate issued in respect of Office assistant Mr. Papanna L-111 to L-118 8 documents to show that Warehouse was part of Bangalore factory

98 Court has not considered the fact that if the Labour Court ignores or fails to investigate a material circumspection putforth by the claimants and gives a finding against them, the said finding can certainly be said to be vitiated by an error of law apparent on the face of the record. The Labour Court failed to appreciate that the respondent management has planned to close the Bengaluru factory circumscribing mandatory provisions of law and retrench the workmen in the guise of voluntary retirement scheme and the voluntary retirement scheme was void ab initio. The Labour Court erred in the application of law and failed to appreciate irrebuttable evidence on record and therefore award passed by the Labour Court is liable to be quashed. Therefore, he sought to quash the impugned order passed by the Labour Court by allowing the present writ petitions directing the respondent Management to reinstate the petitioners with continuity of service with backwages, benefit with interest and costs.

100 to closure and Sections 25-M, 25-N and 25-O of the I.D. Act pertaining to prior permission is mandatory.

101 character. Paragraph-15 relates to public policy in terms of Section 23 of the Indian Contract Act. Paragraph-16 relates to the proposition that the agreement should not be against the public policy which would be void. In paragraph-17 it is held that mandatory requirement as contained in Sections 25-N and 25-O of the I.D. Act must therefore be given full effect.

(i) Restoration of Section 25-O(6) of the I.D. Act ; (ii) Prosecution of the Management under Section 25-R of the I.D. Act (penalty for illegal closure). In paragraph-12 it is observed that since no application for permission filed within the time, the workman shall be entitled to all the benefits under the provisions of the I.D. Act.

102 8. The Division Bench Judgment of the Bombay High Court in the case of HINDUSTAN LEVER LIMITED .vs. HINDUSTAN LEVER EMPLOYEES UNION AND ANOTHER reported in 2006-I-LLJ-1119 (paragraphs-36 and 39) for the proposition that - covered under item No.10 of the 4th schedule amounts to retrenchment of the workmen and notice under section 9A of the I.D. Act necessarily required.

103 11. Learned senior counsel for the petitioners relied upon the following judgments with regard to “Transfer was malafide”:

(i) The Judgment of the Bombay High Court in the case of STANDARD CHARTERED BANK LIMITED, MUMBAI .vs. GRINDLAYS BANK EMPLOYEES UNION, MUMBAI AND ANOTHER reported in 2003-II-LLJ 512 (paragraph-11)

(ii) The Judgment of the Hon’ble Supreme Court in the case of J.K. COTTON S & W MILLS CO. .vs. STATE OF U.P. & ORS. reported in 1991-I-LLJ-39 (paragraphs – 5 and 7) for the proposition that resignation tendered due to duress or coercion is not resignation.

(iii) The Judgment of the Madhya Pradesh High Court in the case of RAVI DUTT .vs. STATE OF H.P. reported in 2008-III- LLJ-795 (paragraph-14, 15, 16 and 20)) with regard to the provisions of Sections 25-N & 25-O of the I.D. Act.

104 13. The Judgment of the Hon’ble Supreme Court in the case of M/S TATA CHEMICALS LIMITED .VS. THE WORKMEN REPRESENTED BY CHEMICALS KAMDAR SANGH reported in (1978)3 SCC 42 (paragraph-18)

reported in 1979 LAB. I.C. 234 (paragraph-6)

105

106 STATE OF GUJARAT & OTHERS (para – 2, 7, 10, 11, 12, 24A, 25 and 26)

107 record. Ultimately, the Hon’ble Supreme Court allowed the petition and remanded the matter to the Industrial Tribunal for adjudication according to law, since there were grave and fundamental errors including the errors in assessing financial capacity etc. in the award of the Tribunal.

108 continuous service or any part thereof in excess of six months. He further contended that stoppage of production of one unit will not amount to closure. He invited the attention of the Court to the definition of Section 2(oo) of the I.D. Act with regard to ‘retrenchment’. He emphasized the mode of termination of employment and also sought to rely on the definition of ‘industrial dispute’ as contemplated under Section 2(k) of the I.D.Act. He also contended that Section 2A of the I.D. Act involves individual dispute of the workman wherein VRS is excluded. Therefore the respondent is not coming within the definition of Section 2A of the I.D. Act. He however submitted that Section 10(4A) of the I.D. Act pertains to individual workman. Learned counsel further contended that the provisions of Section 25FFF of the I.D. Act relate to payment of compensation to the workman. He also invited the attention of the Court to Section 25FFF(1A) of the I.D. Act.

109

“On behalf of management Mr. Matekar responded as under: • Management commitment given to High Court at time of merger has nothing to do with the management plan of rationalization of manufacturing sites. Rationalisation of sites is a business decision taken to make oranisation more viable financially. Rationalisation of sites has to do with the contribution sites are making to the organization. • Bangalore site has become unviable in view of product rationalization and increasing cost of production at site.

110 Production activity has reduced over the years as presented to the union during the last meeting. • Unethical market competition, which the company is facing, makes it important for company to have low manufacturing costs. • Profitability of company does not mean sites are profitable. Management takes number of initiatives to gain profitability. Site viability depends on contribution made by the site. GSK Bangalore presently is not in position to sustain production at competitive cost, • The rationalization of sites has been carried out with the amicable co- operation of the union where joint efforts were made to make the process of separation as less painful as possible. All employees at various sites have willingly accepted the package and have separated happily indicates good management intentions.

111 • Emphasized that sites are not being rationalized because of employees but because of changed business situation.”

“Mr. ADM detailed the agenda that management wished to proceed further for bringing the operations at plant to an end. He remarked that during the last three meetings, we have not moved sufficiently and senior management was concerned.

Hence, management wished to move forward with the intend to work out a VRS package for the employees. In this connection, he wanted to share the age and service profile of employees, which would form the basis for working of VRS package and union can note down and give

112 a thought. Any suggestion to have some other way will be welcomed and discussed.

Union Gen. Secy Mr. J. Babu, reacted by saying that before the union considered such discussions, it was important that management gave some favourable decision in various pending issues, which have led to disturbing the minds of employees and lack of faith in GSK management. He mentioned that paying of LTA and ex-gratia bonus would lead to better atmosphere for discussion and make it easier for union to convince its members towards management view.”

113 stretch its hand till it was sure that Union will not grab. The management has a history of fair dealing and handling over 5000 employees. 1600 employees at various sites and branches are willing and have happily separated, which leaves no doubt about management’s fairness when dealing with this issue. The learned senior counsel for the respondent further contended that Annexure - J13(M-13) gives the details of financial package offered by various Managements under Voluntary Retirement Scheme and it reads as under:

Ingersoll Rand (I) Ltd Rs. 10 lac Widia (I) Ltd Rs. 8 lac Astra Zenka Ltd Rs. 8 lac Mico Rs. 6 lac L & T Rs. 5.5 lac Vikrant Tyre Mysore Rs. 3.25 lac BEML Mysore Rs. 5 lac

Learned senior counsel for the respondent further contended that the respondent-company has offered

114 financial package under the VRS scheme ranging from 7.5 to 10 lacs.

(ii) VRS data for GSK schemes at Worli, Ankleshwar and Mulund.

115 note to be received from Mr. ADM. Mr. ADM then sought the response of Mr. A.V. on how to proceed further. Mr. Allampalli then asked for management VRS package offer to be given to the Union, for which Mr.A.D. Matekar made an offer on behalf of the Management as under:

Service Profile- Employees Amounts Offered Incentive offered upto 15 years of service

15 to 30 years

above 30 Years Rs.6 Lacs

Rs.7 Lacs

Rs.6.5 Lacs Rs.50,000/- within first week of the VRS notice. This includes Rs.4,000/- being paid as settlement dues for two months.

116 is high time that they should concede the demands already submitted which would come to an average Rs.6,000/- increase per month and by taking this Rs.6,000/- to the monthly salary of each employee, they should calculate the salaries for the rest of the service till the age of superannuation of 65 years which would come to more than 71 crores in total. Apart from that, the offer that was made by the management on 30th October, 2003 should be revised thoroughly. He further contended that on the basis of the said letter, the Management had convened meeting on 7.11.2003, in which it was observed that the Union responded positively to the argument given by Major Kuvant Singh and Mr. Kulkarni and the following offers were made:

“Union wished the VRS package may be calculated as under: {[existing basic +cola]+6000} x BMOS with a ceiling of Rs.30 lakhs and was not in favour of any slab.”

117

0-15 years of service 7 lakhs 15-30 years of service 8 lakhs More than 30 years of service 7.5 lakhs or BMOS which is less.

118 that management could no way talk about amount in the range of Rs.15 lakhs to Rs.20 lakhs. Mr. TS appreciated Mr.AV calling GSK Management intelligent, but confirmed that the Union expectations are very high and Management offer is closer to the highest as indicated by ADM. Hence the Union needed to moderate its demands. Mr. ADM then made an improved management offer as under:

Service Amounts Offered Incentive 0 to 15 years

15 to 30 years

above 30 Years Rs.7.5 Lacs

Rs.8.5 lacs

Rs.8 lacs Rs.50,000/- for applying before a specified period after VRS notice and includes Rs.4,000/- towards COD for the months of Nov and Dec 2003.

119 settlement of VRS, the Management lodged a complaint on 18.11.2003 as per Annexure J-19 to the Deputy Labour Commissioner & Conciliation Officer and thereafter the Management issued notice as per Annexure J-21 which was put up on the notice board notifying the workmen that the management is seriously concerned about the incident and had taken a strong cognizance of such acts of irresponsible behavior and attempt to cause loss to company’s property. He further submits that on 26.11.2003 again another notice was issued as per Annexure J-22 in which it was stated that the management had clarified to the Union, more than once, that the VRS compensation amounts would depend on:

(a) the current wage level of workman, (b) balance month’s of service for each individual and (c) the schemes already offered in Bangalore Region.

120 workman shall be in full and final settlement of and in complete satisfaction of all claims of the workman and no further amounts would be claimed by such workman against the Company once payment had been received under the Scheme. The benefits under the scheme was for those workmen who have worked below 20 years was Rs.7.5 lakhs; 20 years and above, but below 30 years – Rs. 10 lakhs and 30 years and above – Rs.7.5. lakhs with conditions of payment.

121 retirement under the Scheme once submitted, shall not be allowed to be withdrawn thereafter.

122 5. The Scheme shall not be negotiable and shall not be deemed or construed to become the subject matter of right or contract or form part of the contract of service or service conditions. It shall not become the subject matter of any industrial disputes(s) or any other legal proceedings and shall not be cited as a precedent criteria or practice at any time in future.

123 matter in the hands of the Management, instead of erroneous advice from an external President, who was entrusted with the responsibility of guiding and protecting the interest of the employees and henceforth, they withdrew all their connections with their external President subject to the provisions of their Union Byelaws. Learned senior counsel further submitted that even though such allegations are made against the President, the President was not examined before the Labour Court to sustain such allegations. In Annexure J-33 (notice issued by the Management), it was specifically stated that they wish to reiterate that the incentive of Rs.1 lakh that is being offered to applicants will not apply after 12th December 2003; It was, therefore, in the individual interest of each workman to think seriously about the benefits that he or she would gain by applying for a package under the said Scheme, as soon as possible, but certainly to the end of the day on 12th December so that the incentive amount is not lost;

124 They also stressed that benefits under this Scheme would not be enhanced; They would go further to say that even the current amounts might not be available after the period of the Scheme, which was introduced on 12.10.2003. Learned senior counsel further contended that the important document is Annexure-J-38 dated 19.12.2003 – Voluntary Retirement Application filed by the General Secretary of the Union, confirming that he ceases to have any claim against the Company with effect from the date of voluntary retirement; He shall have no claim on any benefit that may arise out of any dispute pending now or that may be raised in future at any forum; He accepts that he shall have no claim or right for re-employment in the Company or any other Company or concern under the management; He promised to return all the Company’s property in his possession, if any, before collecting the benefits under the Scheme. The Management issued transfer orders as per Annexure J-34 on 17.12.2003

125 though it was made before the scheme was closed. It was further contended by the learned counsel that inspite of such transfer orders, none of the workmen including the present petitioners have challenged the transfer orders nor have protested the same.

126 External President of the Union, Mr. Allampalli Venkataram, in all future proceedings. WW.1 had felt that he had no authority to give such a statement in writing as, in the year 1992, the Union had passed a resolution to the effect that Mr. Allampalli Venkataram would be the Permanent President of the Union and his post cannot be contested. He requested the Management to permit him to call a meeting of the Executive Committee of the Union to take a decision. An emergency meeting of the Executive Committee of the Union was held in the plant premises itself. Though the Committee was not happy to give such an undertaking, under the circumstances, it was agreed that they had no option but to comply with the Management’s demands. Accordingly, WW.1 had conveyed his consent to incorporate the amendment.

127 applications (Exs.M. 38 to 1035) for VRS on par with the application filed by the General Secretary as per Annexure J-38. As per Annexure J-39, the management has accepted the VRS application on 19.12.2003 filed by the General Secretary and a sum of Rs.6,91,010/- was paid after deducting the amount in terms of the appointment rules as per Annexure-J41 and a sum of Rs.72,850/- was paid towards Gratuity Fund as per Annexures J-41. All the petitioners have also received amount towards VRS on 12.1.2004 and provident fund and gratuity on 31.12.2003. The petitioners filed individual claim petitions under Section 10(4A) of the I.D. Act on 20.5.2004 suppressing all the material facts including the VRS, receiving of Gratuity, Provident Fund amounts by them; discussions held by the Union with the management. Learned counsel also brought to the notice of the Court the various suppressions made by the claimants in the claim petitions in para-15 wherein it is clearly narrated that the action of the Management is illegal

128 and though the workmen have signed the so-called VRS Forms, it was done involuntarily.

129 Management wherein it was specifically stated that VRS is contractual in nature, but both the parties have completed their obligation under the contract; All the employees have accepted the benefit under the Scheme and accordingly have been relieved and now they cannot be permitted to turn around and state that they should be taken back in service. At paragraph-49 of the counter- claim, it is stated that the first party-workmen challenging the termination on the ground that the closure of the undertaking and stopping of the manufacturing activities as illegal; that in a petition filed under Section 10(4A) of the I.D. Act, it is not open to raise such plea and as such dispute has to be raised under Section 2(k) of the I.D. Act; Further, the workmen who opted for voluntary retirement and received the benefits cannot raise any dispute either under Section 2A read with Section 10(4A) or under Section 2(k) of the I.D. Act; that stoppage of manufacturing activities by itself does not give any right to raise the

130 industrial disputes, as the workmen have been paid salary till the date of relieving on account of VRS; that the plea taken by the workman is very ingenious; In a situation where all the workmen and other staff leave the service under VRS, the same cannot be characterized as closure.

131 who opted the above scheme on or before 12.12.2003, a sum of one lakh rupees each will be paid as ex-gratia.

132

133 the amounts in pursuance of their voluntary retirement scheme. He further pointed out that in the cross- examination of WW2, he has denied the suggestion that since then, he stopped taking advice of Allampalli Venkataram and he removed him from the Presidentship. The Union did not address a letter to the Management stating that the letter Exhibit M.29 dated 22.12.2003 was obtained by the Management from the Union by putting pressure. WW.2 also stated that it is true that all cheques received from the Management were encashed by the workmen. The said Union is still in existence and its registration is being renewed from time to time. The Union is also collecting subscription from the members. The Union has submitted its return to the Labour Department. That after the death of Janardhan Babu, who was the General Secretary of said Union, he was unanimously elected as General Secretary in the Special General Body Meeting. WW.2 has stated that it is true that even prior to

134 31.12.2003, their Union had been recognised by the Management.

He has denied the suggestion that Management did not terminate the workmen as sworn in para-4 of his affidavit by way of examination-in-chief. Except for the two workmen, the Management did not issue termination orders to the remaining, out of its 256 workmen. The benefits of the said scheme was extended even to the said two employees for whom termination order was issued by the Management. WW.2 further stated that the resolution Ex.W.46 was passed on 18.12.2003 to the effect that employees would opt for VRS and thereafter raise a dispute. WW.2 has denied the suggestion that Ex.W.46 is silent regarding raising of dispute regarding VRS. It is admitted that the resolution dated 18.12.2003 (Ex.W46) was not informed to the management on 19.12.2003, the day on which the workmen submitted VRS applications or thereafter. He has denied the suggestion that resolution dated 22.12.2003 as per Ex.W.49 was not

135 conveyed to the Management. The resolution dated 22.12.2003 was conveyed to the Management through letter Ex.W48 dated 22.12.2003. Learned counsel also invited attention of the Court to further admission of WW2 that it is true that the workmen did not address any letter to the Management, withdrawing their VRS applications.

136 VRS benefits and apart from getting the gratuity and also VRS benefit from the management, he also got settled his provident fund claim. Further, WW5 has admitted that his gross salary was around Rs.20,000/- during December, 2003; that he did not have the pay slip on the day of giving the evidence; that he had given his date of birth as 6.3.1949 to the Management;

That before the Management accepted his VRS application on 22.12.2003, he did not address any letter to the Management that he want to withdraw his VRS application for the reason that he was forced by Sharavan to give the VRS application; He did not express his protest to the VRS, while receiving gratuity amount, VRS benefit and Provident Fund benefit. He could not recollect that he got around 15 lakhs by way of gratuity, leave encashment, provident fund and VRS benefit from the management. He has denied the suggestion that he had voluntarily opted for VRS for the reason that he would get a lumpsum amount from the Management.

137 53. Learned senior counsel for respondent further invited attention of the Court with regard to admission of WW6 and stated that he has admitted that it is true that VRS applications were submitted by the workmen on 19.12.2003 and the said applications were accepted by the Management on 22.12.2003. He also admitted the suggestion that it is true that the workers, who had opted for VRS were relieved by the Management on 31.12.2003 and on that day gratuity amounts were paid by the management to the respective workers. He has also admitted that the VRS amount was paid by the management on 10.1.2004 and that he encashed the gratuity cheque and the cheque pertaining to the compensation amount of VRS and that he got the provident fund amount in January, 2004 itself after submitting his P.F. closure form.

138 made by WW7 in the cross-examination. WW.7 has admitted that it is true that the staff members were treated separately by the management; that after acceptance of VRS by the management, the workers, who had opted for VRS were relieved on 31.12.2003; that he and other staff of the 2nd party continued to work at Bangalore in the 2nd party company even after 31.12.2003. That his immediate boss Mr. Palan compelled him to take VRS after 31.12.2003. He has denied the suggestion that Mr. Palan had told him that he should resign from the respondent – company (2nd party). He has also denied the suggestion that the persons, who were working in the ware house were in no way connected with the affairs of the factory of the 2nd party. He has denied the suggestion that said Mr. Palan had only told that warehouse employees are at liberty to leave the organization by tendering their resignation and there was no element of force or compulsion from him.

139 55. He further invited attention of the Court with regard to the cross-examination of WW8 wherein she has denied the suggestion that she had complained against the 2nd party management regarding sexual harassment of lady workers; that the above complaints were false; that the complaint was signed by only 86 workers only; that other workers did not sign the above complaint for the reason that the complaint contained false allegation against the management. She has admitted the suggestion that it is true based on their complaint, the labour department officials visited the factory on 12.12.2003 and that they have questioned the lady workers of the factories. When the said officials asked the female workers, they informed them that there was no sexual harassment by the 2nd party management.

As far as she knows, the said Janardhanababu was working in maintenance department. She did not know that Harish and Revindarnath are also working in maintenance department of 2nd party company.

140 She has denied the suggestion that the above complaint was given by the workers heeding to the ill advice of Alampalli Venkatram. She was not sure whether the said complaint was got typed by Janardhanababu, but 86 workers had signed the said complaint in the morning of 11.12.2003.

141 that he received acceptance letter from the management as per Ex.M.822 on 22.12.2013. It is true that he was paid the gratuity cheque on 31.12.2003. The management settled his VRS claim on 10th or 12th of January 2004.

142 respondent – Management during the cross-examination. MW-1 Vittal Kulkarni has denied the suggestion that from 30.11.2003 onwards the production area of the factory was locked and the workmen were prevented from entering the factory.

He also denied the suggestion that the management sent for one employee by name Krishnappa during mid night and obtained his signature on Voluntary Retirement Scheme application. He denied the suggestion that the workmen went on strike expressing their unpreparedness to accept the voluntary retirement scheme on 26.11.2003. When the voluntary retirement scheme was announced on 01.12.2003, the question of workers resorting to strike from 26.11.2003 to oppose the retirement scheme does not arise. The witness further denied the suggestion that even thereafter the workers continued their strike. 59. Learned senior counsel for the respondent also invited the attention of the court with regard to finding

143 recorded by the Labour court at para 24 that during the cross examination, WW.2 denied the suggestion that the revenue sales in respect of products manufactured by second party declined from 84.5 crores in the year 1999 to 81.15 crores in the year 2003. Although the witness denied the suggestion that even prior to the year 2003 there was practice of outsourcing in vogue in Bangalore factory of second party. he has stated that in the case of exigency the management used to outsource.

144 that the compensation of Rs.7.5 lakhs for the employees who had served upto 15 years, 8.5 lakhs for employees who served between 16 to 30 years and 8 lakhs to employees who served for more than 30 years. The Labour Court also recorded a finding that the management has pointed out as to what transpired between the management and the union representatives during the meetings held on 1.9.2003, 26.09.2003, 22.10.2003, 30.10.2003, 7.11.2003 and 13.11.2003. The management further clarified that since no progress was made, the management representatives suggested to the Union to call for the next meeting in case of the Union representatives find a way to bridge the very wide gap between management’s offer and union’s suggestions. 61. The learned Senior counsel further pointed out the observation/finding recorded by the Labour court that the evidence of WW.2 cannot be accepted having regard to open mind with which the management participated during

145 the meeting held on 1.9.2003, 26.09.2003, 22.10.2003, 30.10.2003, 7.11.2003 and 13.11.2003. WW.2 has admitted during the course of his cross examination on 07.02.2009 that management did inform all the employees that the production activities will be ceased from 30.11.2003. It is in the evidence of WW.2 that voluntary retirement scheme announced by the management on 01.12.2003 as per Ex.M.26 was in force from 01.12.2003 to 19.12.2003.

146 (1999)3 LLJ 552 is not applicable to the facts of the present case. Therefore he sought for dismissal of the writ petitions.

147 they be permitted to resile from their earlier stand. Xxx xxx

148 8. This fact, however, was not brought to the notice of this Court at the time of the hearing. However, the fact remains that the incumbent had accepted the benefits under the scheme and utilization thereof would squarely be covered by direction No.1 as noticed above. Therefore, the judgment dated December 17, 2002 is reviewed to the extent that the appeal arising out of the judgment and order of the Uttaranchal High Court is dismissed and the judgment of the High Court is upheld.

149 2. 2006 LLR page 335 (SC) {CEAT Ltd., vs. Anand Abasaheb Hawaldar and others}, wherein the Hon’be Supreme Court held at paragraph Nos.4, 6, 11 and 20 as under:

(i) A complaint of unfair labour practice could be filed only by a recognized union and not by an individual workman or some of them. Therefore, in a complaint fled by 6 employees, relief could not be granted to337 employees.

(ii) In order to sustain the grievance under Item (5) of Schedule IV to the Act, something more than mere differential treatment was necessary to be established. It was incumbent upon the claimants to show that there was any favouritism or partiality shown to one set of workers regardless of merits.

150 (iii) In order to sustain the grievance under item (9) of Schedule IV to the Act, it was to be established that there was failure to implement any award, settlement, agreement, and

(iv) In order to sustain the grievance under Item (10) of Schedule IV to the Act, it was to be established that the employer had indulged in act of force or violence.

151 therefore, the complaint should not have been entertained. xxx xxx

152 20. That being the factual position the relief granted by the Industrial Court to the complainants cannot be maintained. The judgment of the High Court upholding the view of the learned single Judge and the Industrial Court stands set aside. In view of this finding of fact it is not necessary to go into the question of maintainability of the proceedings before the Industrial Court, by employees who retired voluntarily from service.

153 i.e. to meet the ends of justice. It is equitable in nature.

While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must ‘advance the ends of justice and uproot injustice’.

154 which is in consonance with the doctrine of equity. It has been rightly said that a person ”who seeks equity must do equity”. Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution.

Para.22: We, therefore have no hesitation in coming to the conclusion that the voluntary scheme was not a proposal or an offer but merely an invitation to treat and the applications filed by the employees constituted “offer”. Once

155 the application filed by the employee is held to be an “offer”; Section 5, in absence of any other independent binding Contract or statute or statutory rules to the contrary would come into play.

Para 28: The appeals preferred by the nationalized banks arising from the High Courts are dismissed except the cases where the concerned employees have accepted a part of the benefit under the scheme; However, in respect of such of the employees who despite acceptance of a part of the retirement benefit under the scheme had continued under the orders of the High Court and have retired on attaining the age of superannuation, this order shall not apply.

2007 I LLJ 619 (SC) {BHARAT HEAVY ELECTRICALS LIMITED .vs. ANIL} wherein the Hon’ble Supreme Court held at paragraph 13 as under with regard to Section 2A of the I.D. Act:

156 “Para 13: ….. In those judgments, a substantial industrial dispute was raised which is not the case herein.

Therefore, they have no application to the present case. There is one more reason for coming to the above conclusion. There is a difference between an individual dispute which is deemed to be an industrial dispute under Section 2-A of the said 1947 Act on one hand and an industrial dispute espoused by the union in terms of Section 2(l) of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute under Section 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under Section 2(l) covers a wider field. It includes even the question of status.

157 the provisions of Section 25-O of the I.D. Act, held at paragraph-3 as under:

Para 3: ……… There is no merit in the aforesaid contentions.

Merely because the second respondent has chosen to discontinue the manufacture of one of its products, it cannot be held that it has closed down a part of its undertaking. The second respondent is multi- product manufacturing company.

It manufactures various products in its Sewri factory. Under Clause 8 of the Standing Orders confirmed by the Industrial Court, the management has been given authority to transfer an employee from one department to another or from one shift to another.

158 Constitution to interfere with the decision of the Tribunal held as under at paragraph-11.

“para 11: …. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction. xxx xxx The Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence.

159 Supreme Court while referring to Section 25FFF of the I.D. Act held at paragraph-3 as under:

“3. xxx xxx The contention was that the tribunal having found that the factory had in fact closed down, it had no jurisdiction to go into the question whether the closure could have been avoided. In our opinion, the argument is well- founded and must be accepted as correct. The distinction between a lookout and a closure has been explained by the decision of this Court in Express News papers, Ltd. V. their workers and staff and others (1962-II L.L.J. 227). It was pointed out in that case that in the case of a closure, the employer does not merely close down the place of business but he closes the business itself finally and irrevocably. A lockout on the other hand indicates the closure of the place of business and not closure of the business itself. In the present case the totally of facts and circumstances would lead to the conclusion that the undertaking at Jamshedpur was closed

160 down completely and was a final and irrevocable termination of the business itself xxx.”

Para 15 .. It is by now well-settled by more than one decision of the Supreme Court as also of this Court that the concept of closure in law is not merely closing down the place of business, but, on the other hand, the business itself must be relinquished clearly and unmistakably and the legal personality of the same must come to an end. When an employer is really continuing the business as distinguished from the mere outward from of it, and that in the case of legal closure, and employer does not merely close down the place of business, but he closes down the business itself and consequently, the closure

161 indicates a final and irrevocable termination of the business itself, in contrast to lack-out which indicates closure of the place of business and not closure of the business itself xxx xxx.

Para 20: It is by now well settled that though the jurisdiction under Article 226 of the Constitution of India is truly wide, but, for that very reason it has to be exercised with great circumspection and it is not for the High Court to constitute itself into an Appellate Court over the Tribunals constituted under special legislations to resolve the disputes of kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. Be it that such questions decided pertain to jurisdictional facts since that by itself does not entitle the High court to interfere with the findings on jurisdictional facts, which the Tribunal is well competent to decide in the same manner as an Appellate Court can interfere with any finding of fact. We are very much alive to the position that there are no limits as such on the scope, extent and content of the powers

162 under Article 226 of the Constitution of India. There are, at any rate, certain and well settled self-imposed restrictions which the Courts, except under extra ordinary cases of monstrous circumstances of the situation or in order to answer the extreme calls of distress, would not normally undertake to interfere xxx xxx.

(7) 2007 II CLR 193 (BIDDLE SAWYER LIMITED .vs. CHEMICAL EMPLOYEES UNION). In the said judgment, the Bombay High Court while referring to Section 25FFF of the I.D. Act held at paragraph 41 as under:

Para 41: It must be realized that a place can never be permanently closed if it has no relationship with the business or industry. Therefore, if the business is not closed, then one cannot permanently close a “place” of business. Similarly closure of a place of employment i.e. any one of the establishment will have no meaning unless the industry or establishment is closed and the employment comes to an end. This is because without closing the business

163 closure of a “place” in which business is carried on cannot be permanently closed, as some other business will start in that place. Therefore closure of a “place of employment” would mean closure of the undertaking or the establishment wherein employees are provided employment in the sense business is closed and not merely the place where business is carried on.

(2) committed an error of law

(3) committed a breach of the rules of natural justice

164 (4) reached a decision which no reasonable Tribunal would have reached or (5) abused its powers

“para 17: The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction in a matter like the present case where orders passed by the Statutory Authority vested with power to act

165 quasi judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another Appellate Court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case.

“ The law may, therefore, now be taken to be settled as a result of this decision that where the government makes a promise knowing or intending that it would be acted on by the promises and, in fact, the promise, acting in

166 reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promises, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. It is elementary that in a Republic governed by the rule of law, no one, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned.

167 “We find sufficient force in the contention of the learned senior counsel for the appellant in regard to the meaning of the words “has either decided erroneously or failed to decide any question of law”. On the facts of the present case, learned senior counsel is justified in submitting that the lower tribunals had neither decided any question of law erroneously nor failed to decide any question of law. Mere non-consideration of relevant documents including the relevance of certain Judicial Proceedings would not strictly fall within Section 103 of the Act.”

Para 11: xxx xxx The primary Tribunal having discussed the evidences adduced on both sides at length and having regard to the conduct of the petitioners in realizing all the benefits flowing from the scheme, pursuant to their resignations

168 held that the petitioners have voluntarily opted out of the service under the scheme. On the question whether there was any force or coercion in obtaining the resignations, it has come in evidence that when the 1st petitioner has asked to sign on the cyclostyled resignation format, he accordingly signed and collected the cheque in final settlement of his accounts. Except stating that he was asked to sign on the cyclostyled resignation format, there is no evidence worth persuading that the petitioners are forced to tender their resignations. In the background of this evidence, both Authorities under the Act came to the conclusion that there was no force or fraud on the part of the 1st respondent but it was a case of voluntary resignations under the scheme.

Para 12: xxx xxx Further the contention that the scheme was operative only for three days thereby they were left with no time to think the pros and cons of the scheme cannot be appreciated as the petitioners did not choose to seek for extension of the scheme for a further

169 period, if really they felt pressurized they would have definitely sought for extension of the scheme for some more days. The decision relied on by the learned counsel in Blue Star Limited (supra) was a case where the workmen complained of pressure and coercion in accepting the voluntary retirement scheme and on the very next day a complaint was made to the management and also to the police alleging pressure and coercion and under those circumstances it was held that the management practiced unfair labour practice xxx xxx.

In the present case, as observed above, issuance of notice under Section 9-A of the Act is not necessary, as the scheme offered was optional and not compulsory and therefore by any stretch of imagination it cannot be said that the scheme adversely affected the interest of the employees, but in fact afforded a chance to those employees who were willing to opt out of service by receiving lumpsum amount.

170 (13) 2012 III LLJ 400 (Mad) { MANAGEMENT OF HOLWART ENGINERING COMPANY .vs. S. DHANASEKAR} wherein at paragraph 39 it is held as under with regard to force, coercion or pressure:

Para 39: In the light of the above legal precedents, the dispute raised by the workmen are not maintainable for more than one reason. The first reason being there cannot be individual non-employment issue in case of closure covered by Section 2-A of the I.D. Act, especially when the workmen have demanded their legal dues to be paid and have accepted and passed on a full and final settlement receipt not to claim any reinstatement or re-employment. The Labour Court did not find any answer either to the letter written by the workers or the subsequent payment of compensation. Even otherwise when a closure covered by Section 2(cc) of the I.D. Act is under challenge, it has to be done only in terms of a collective dispute under Section 2(k) of the I.D. Act as held by the Supreme Court referred to above. The only exception is the

171 industrial establishment covered by Chapter V-B of the I.D. Act.

(14) (1992)4 SCC 683 { R.N. GOSAIN .vs. YASHPAL DHIR} wherein the Hon’ble Supreme Court held that having the employees accepted the Voluntary Retirement Scheme and received the entire amount, they cannot approbate and reprobate. In the said Judgment, the Hon’ble Supreme Court held at paragraphs-9 and 10 as under:

Para 9: xx xx By furnishing the said undertaking the petitioner elected to avail the protection from eviction from the premises and he enjoyed the said protection till the passing of the order by this Court on March 26, 1992, staying dispossession of the petitioner. Having elected to avail the protection from eviction under the order dated March 6, 1992 passed by the High Court, by filing the requisite undertaking the petitioner cannot be permitted to assail the said order.

172 Para 10: Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.

(15) (2011)5 SCC 435 {JOINT ACTION COMMITTEE OF AIR LINE PILOTS’ ASSOCIATION OF INDIA .vs. DG OF CIVIL AVIATION} wherein the Hon’ble Supreme Court held at paragraph 12 as under:

Para 12: The doctrine of election is based on the rule of estoppel – the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one the species of estoppels in pairs (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or

173 conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.

(16) 1992 Supp (2) SCC 312 {H.B. GANDHI .vs. GOPINATH & SONS} wherein the Hon’ble Supreme Court held at paragraph 8 as under with regard to judicial review.

Para 8 : But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to so ensure that the authority after according fair treatment reaches, on a matter which it is

174 authorized by law to decide, a conclusion which is correct in the eyes of Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.

(17) (2011)5 SCC 341 { STATE OF U.P. .vs. RAKESH KUMAR KESHARI} wherein the Hon’ble Supreme Court held as under at paragraph-29 with regard to judicial review.

Para 29: The Court in Johri Mal case {(2004)4 SCC 714} also held that the decisions and actions which do not have adjudicative disposition would not strictly fall for consideration before a judicial review court. According to this Court the limited scope of judicial review is: (i) Courts, while exercising the power of judicial review, do not sit in an appeal over the decisions of administrative bodies ;

175 (ii) A petition for judicial review would lie only on certain well- defined grounds; (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself was perverse or illegal ; (iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; (v) The supervisory jurisdiction conferred on a Court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice; and (vi) The Court shall not ordinarily interfere with a policy decision of the State.

176 respondents submits that none of the workers were given minutes of the meeting and none of the workers have signed minutes of the meeting. The dispute arose on 01.10.2003.

177 stated that the Labour Court has rightly considered both the oral and documentary evidence on record with reference to issue involved in the dispute. He also submitted that the judgments relied upon by the learned senior counsel for the petitioners are not applicable to the facts and circumstances of the present case. The written arguments filed by learned senior counsel appearing for respondents is placed on record. VI Points for determination

178 under Articles 226 and 227 of the Constitution of India ?

VII Consideration

179 trade union called M/s Glaxosmithkline Pharmaceuticals Employees Union and same was registered under the Trade Union Act and was recognized by the respondent- Management of the Bengaluru plant. It is also not in dispute that the petitioners’ Union entered into several settlements with the management pertaining to revision of wages, dearness allowance and other allowances. The Union had maintained cordial relationship with the Management. The last settlement pertaining to revision of wages was signed by the Union on 16.6.2001 and the said settlement expired on 31.10.2003.

Therefore new settlement was required to be negotiated and signed after 1.11.2003. The Union without suspecting any foul play by the Management has submitted a charter of demands on 17.9.2003. The Union issued notice of termination of the settlement on 15.6.2001 and also submitted charter of demands to be considered after 1.11.2003. It is also not in dispute that the Management was not willing to consider

180 the charter of demands nor to bargain with the Union. The Management did not take Union into confidence to discuss the matter when the charter of demands was presented. The Management started prevailing upon the workmen to leave the services of the company by accepting the benefits of voluntary retirement scheme.

(1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the

181 prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: PROVIDED that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work. (2) Where an application for permission has been made under sub-section(1),the appropriate government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regards to the, genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order. and for

182 reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. (3) Where an application has been made under sub-section (1) and the appropriate government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (4) An order of the appropriate government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under

183 sub-section (2) or refer the matter to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section , it shall pass an award within a period of thirty days from the date of such reference. (6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down. (7) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such

184 undertaking for such period as may be specified in the order. (8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months.]

185 I.D. Act. It is further case of the petitioners that the Management has violated Section 33(2)(b) of the I.D. Act. The VRS in the present case was not voluntary and VRS should be introduced when the factory was in existence. Before closure, the Management has not obtained necessary permission from the Government and same has not been considered by the Labour Court.

186 Therefore the petitioners raised an industrial dispute under Section 10(4A) of the I.D. Act. 73. It is the specific case of the respondent that the Management introduced Voluntary Retirement Scheme and all the workmen have opted the scheme announced by the Management voluntarily and have received not only amount payable under the VRS but also other terminal benefits. The scheme came into existence on 1.12.2003. No workman raised any dispute with regard to VRS and after accepting the benefits without any objection and protest, the Union has not raised any dispute under Section 10(4A) of the I.D. Act. Once the workmen received the entire benefits including VRS benefits, he will not be a workman within the meaning of Section 2(s) of the I.D. Act, which reads as under:

2(s) "workman" means any person (including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational,

187 clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, function mainly of a managerial nature.

188

189 sign the application form for voluntary retirement scheme at the dotted line. About 37 workmen were transferred by the Management with malafide intention. The VRS came to be introduced on 1.12.2003 which was in effect from 1.12.2003 to 19.12.2003. The evidence of MW.1 on behalf of the Management would show that even after 30.11.2003, the names of workmen and others (totally 256) were totally continued on the rolls of the respondent – company till the acceptance of voluntary retirement applications and payment of VRS benefits. The Labour Court has not considered the entire evidence of MW.1 and admission of the witnesses examined on behalf of the Management. Several documents produced were not at all discussed by the Labour Court and the material admission/evidence of MW.1 was not considered by the Labour Court before passing the impugned order. It is further contended that several admissions of MW.1 and several documents were not considered by the Labour Court. It is further

190 stated that the Labour Court has not considered the evidence tendered by some of the witnesses and the documents and authorities placed before it before passing the impugned award.

191 action of the respondent would not in any way violate the provisions of Section 2A of the I.D. Act. The attention of the Court was invited to the fact that the transfer order – Ex.M24 dated 17.7.2003 was neither challenged nor protested. The President who was representing for the Union is not examined before the Labour Court. The petitioners filed individual claim petitions under Section 10(4A) of the I.D. Act before the Labour Court suppressing material with regard to receipt of VRS benefits, gratuity, provident fund and the discussion held between the Management and the petitioners’ Union. Therefore sought for dismissal of the writ petitions.

192 between the Management and the workmen in each of the meetings held. He has also stated that when the consensus could not be reached between the Management and the workmen regarding the amount of VRS benefit, the Management announced the compensation payable to workmen who had rendered less than 20 years of service, more than 20 years of service but less than 30 years of service, and more than 30 years of service. MW.1 has also spoken about ‘Early bird Scheme’ announced by the Management on 1.12.2003. The Labour Court also recorded a finding that out of 256 workmen, 10 workmen have submitted VRS applications before 12.12.2003 and for those 10 persons, the Management has given Early bird scheme amount of Rs.1,00,000/- and on seeing this, the other workmen who were inspired submitted their VRS applications on 19.12.2003 and all those applications were scrutinized and accepted by the Management and the acceptance was communicated to the respective workmen

193 through individual letters by the Management. When the VRS was announced on 1.12.2003, the question of workers resorting to strike from 26.11.2003 to oppose VRS does not arise. MW.1 has stated in his evidence that what was suspended by the Management w.e.f 30.11.2003 was production of iodex, but not the other business activity of the 2nd party. His evidence would show that even after 30.1.2003, the names of the first party workmen and others (total 256 workers) were continued on the rolls of the second party – company till acceptance of their VRS applications and payment of VRS benefits.

194 allotted to all these first party workmen from 1.12.2003. It is true that in view of the VRS Scheme as well as transfer order, 37 workmen as per Ex.W35 were left with no other option of VRS or going to the place of transfer. Irrespective of VRS Scheme and transfer orders, all the first party workmen were not allotted with any duty from 1.12.2003”. The said admission was not at all considered by the Labour Court.

195 the workman will not aspire for VRS and would like to continue in service. Considering these aspects, we have issued the transfer orders on 17.12.2003 in respect of 37 employees. The first party workman was not ready to accept VRS scheme as on 17.12.2003. I do not know the reasons as to why First party workmen were not accepting VRS scheme till 17.12.2003. It is not correct to suggest that we have published the transfer order on 17.12.2003 with an intention to bring a pressure on the employees to accept VRS scheme. We do not have manufacturing unit at Calcutta. There is only a sales branch at Calucutta”. The said evidence was not at all considered by the Labour Court.

196 workmen were there out of 37 transferees. I do not know that Ravindranath workman was a protected workman. There was no chance of resuming of production work at Bangalore branch, after 30.11.2003”. M.W.1 further stated that, “Ex.P.30(c) suit for injunction that agitation started on 26.11.2003, I do not know how long agitation continued and he admits that sections where machines were there so also kept locked. The said material admission of MW-1 has not been considered by the Labour Court.

197 may be true that separate letters were not issued to the workmen on 19.12.2003. He further admitted that it may be true that they have demanded individual apology letters from 86 complained workmen to release voluntary retirement scheme acceptance letter. He further stated that he does not remember acceptance letters were released after obtaining signature of General Secretary on Ex.M.29 and he does not remember that the acceptance letters were released only on obtaining signature of the General Secretary on Ex.M.29. M.W.1 further stated that, “now I see Ex.W.3 which is action plan of our protect i.e., contingency plan. In Ex.W.3, we have mentioned about there were several other India sides marked for exit/down sizing (Worli, Ankaleshwar and Bangalore). The products which were being manufactured in Bangalore site were continued even after 31.12.2003”. He further stated that many products such as Furandition suspension and Furoxone suspension were discontinued. He further stated

198 that Ex.W.5 is the letter given by the Union to the Management. The union protested the letter regarding outsourcing of products such as Iodex, Zental, Furoxone suspension, Furacin soluvable ointment jars etc. The Union requested the management to maintain status quo regarding outsourcing of the items. He further stated that, “now I see letter Ex.W.5, workmen have sought status quo regarding outsourcing of another ten items. Ex.W.6 is the reply of the management to Ex.W.5. In Ex.W.6 we have rejected the request of the union regarding status quo for the reasons stated therein. It is not correct to state that items mentioned in Ex.W.5 were out sourced only to show that the items were unviable. Ex.W.8 mentions of in house electronic news bulletin of the management. In Ex.W.8 there is a mention of winding down operation of Mysore and Bangalore plants”. He further stated that, now I see Ex.W.52 which shows that Iodex was manufactured at Mackson industries for the company. The commencement

199 of production in Mackson industry might have commenced in March 2004.

200 minutes do not bear the signature of any of the workmen or their representatives. The said material admissions made by M.W.1 have not been considered by the learned Judge of the Labour Court.

201 as practicable. The said letter also depicts that the employees not accepting voluntary retirement scheme will have to remain in the Mulund factory, even though all production will be transferred out and hence there will be no work for them. Minimal services will be provided and this situation would continue indefinitely.

202 a. Less than 100 workmen b. 100 or more workmen.

203 practice on the part of the management. They would seek a restraining order on the company’s proposals. Courts have granted interim stays in the past. The litigation is for an indefinite period. The said material document has not been considered by the Labour Court before passing the impugned order.

204 and 20 union letter to DLC and also Commissioner of Labour dated 18.11.2003 stating that the management has stated that they will close down the operation by end of November and close the factory by end of December but refusing to given the same in writing; Annexures L- 36 union letter to the Commissioner of labour dated 03.12.2003 that Management is closing operation forcing the employees to take VRS; Annexure L-37 Union letter to Commissioner of Labour dated 05.12.2003 complaining Management threatening to stop water, electricity and canteen to force the workmen to take VRS. The said material documents have not been considered by the Labour Court.

205 retirement scheme. The evidence of W.W.8 indicates that the Management had discontinued the production from 30.11.2003 and kept locked all production areas in the factory and announced the voluntary retirement scheme on 1.12.2003. She further has stated on oath that on the advise of the President Mr. Allampalli Venkataram, 86 female workers including herself have signed the complaint dated 11.12.2003 addressed to the Labour Commissioner and other authorities. Ex.W.5-the letter by the Union to the Management, protested the outsource of products such as Iodex, Zentel, Furuxone Suspension, Furacin, Soluvale ointment jars, etc., and requested the Management to maintain status quo and the same is admitted by M.W.1 in the cross-examination. The said material evidence has not been considered by the Labour Court and on that ground alone, the impugned award passed by the Labour Court is not sustainable in law.

206

207 is mandatory under the provisions of Sections 25K & 25-O of the I.D. Act.

208 was to continue till such time as the workmen conceded the demands of the company. The demands of the company itself indicate that 533 workmen shall accept voluntary retirement and the remaining shall agree to work at Aurangabad. Prima facie, the Industrial Court was right in coming to the conclusion that the intention of the company was to close down the Bombay unit and in the absence of permission under Section 25-O of the Industrial Disputes Act, the closure could not have been effected. The Industrial Court, by the impugned order, has gone into the intention of the company and has come to the conclusion prima facie that the notice of lock-out was bad in law as what was intended was to close down the unit in the garb of lock-out. In facts and circumstances of the case, we agree with the learned Single Judge that this was a probable view which the Industrial Court was entitled to take at the interlocutory stage. We also agree with the learned Single Judge that Item 9 of the Schedule IV to the said Act also stood attracted as 1986 settlement stood violated. As indicated

209 hereinabove, prima facie, the Industrial Court was right in coming to that conclusion as the Complaint proceeds on the basis that the service conditions and norms of work were governed by the agreement entered into between the company and the Union from time to time, including the last settlement of 1986 and by denying work and wages to the workmen, prima facie, there is a breach of the said settlement of 1986 and in the circumstances, Item 9 of Schedule IV to the Act, 1971, applied to the facts of the case. We may make it clear that the arguments of the learned counsel for the appellant will have to be examined at the final hearing of the matter and the said arguments will have to be decided by an in depth examination of the evidence in order to find out the true intention of the company. One more fact may be also mentioned that on November 4, 1990, the company applied for permission under Section 25-O of the Industrial Disputes Act to close down the Bombay Unit. However the appropriate Government refused the said permission vide letter dated January 1, 1992.

210 These facts, along with the facts which are pleaded, will have to be examined before coming to the legal contention raised herein and in the circumstances we are of the view that all the above facts will require an in depth examination and in the circumstances we agree with the impugned Judgment of the learned Single Judge who has rightly refused to interfere under Article 226 of the Constitution.

Admittedly in the present case, the Labour Court has not recorded any finding with regard to strength of the workers as on the date of the closure i.e., 30.11.2003. On that ground also the impugned order passed by the Labour Court is not sustainable in law.

211 opted for VRS in pursuance of Ex.M28 before 12.12.2003 and remaining 246 workmen submitted their VRS applications on 19.12.2003. It clearly depicts that as on the date of the closure order passed by the Management, there were more than 100 workmen working in the factory. Therefore the prior permission from the Government under Sections 25K & 25-O of the I.D. Act is mandatory. The said material evidence not considered by the Labour Court. On that ground also, the impugned award passed by the Labour Court is liable to be quashed.

212 is unsustainable. Therefore, the matter requires re- consideration by the Labour Court in view of the dictum of the Hon’ble Supreme Court in the case of MUKUNDA LTD – vs- MUKUND STAFF & OFFICERS’ ASSOCIATION reported in (2004)10 SCC 460 wherein at paragraphs 51 and 52, it has been held as under: 51. It was not open to the High Court, in exercise of writ jurisdiction, to modify an award which, at its very basis, was flawed as it lacked proper application of the fundamentals of wage adjudication. The Tribunal, in this case, has exceeded its jurisdiction. It has embarked upon an enquiry against non-workmen and, therefore, the decision of the Tribunal is a non-compliance with the provisions of the Act. Therefore, the determination by a Tribunal on a question other than the one which Statute directs it to decide, would be a decision not under the provisions of the Act and, therefore, in exercise of its jurisdiction is liable to be set aside.

213 52. It is proved by the appellant that the decision of the Tribunal is wrong and without jurisdiction or in excess of it. This Court has jurisdiction to render justice to the wronged party, namely, the appellant and set aside the same. It is showed before us that the decision of the Tribunal is not fully supported by evidence. We, therefore, hold that this Court has jurisdiction and power to interfere with the award of the Tribunal. The phrase "any person" in Section 2(k) and Section 18 of the Act does not include "non-workmen".

214 signed the voluntary retirement scheme form and have got the benefits by obtaining the entire salary and other benefits under this scheme and therefore, it is not open for them to raise the dispute. The said aspect of the matter has not been considered by the Labour Court while passing the impugned award.

215

216 decided the rights of the parties in accordance with law. The same has not been done in the present case. Therefore, the second point raised in the present writ petition is answered in the affirmative holding that the petitioners have made out a case for interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. CONCLUSION

217

In view of the serious controversy between the parties to the lis with regard to the date of closure and the monetary benefits said to have been received by the workmen under the Voluntary Retirement Scheme as alleged, this Court is only hope and trust that the parties shall settle the dispute amicably.

Sd/- JUDGE

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