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1991 Supreme(Bom) 452
IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Dalanvalan Imarat Bandhkam Patbandhare Kamgar Union.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 4903 of 1989, decided on 18-9-1991.
Advocates appeared :
R.J. Kechar, for the petitioner.
R.D. Soni, A.P.P., for respondents No. 1 and 2.
Retrenchment of workmen during pending conciliation proceedings amounts to unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 33(1)(A) - UNFAIR LABOUR PRACTICE - RETRENCHMENT OF WORKMEN DURING PENDING CONCILIATION PROCEEDINGS - HELD TO BE UNFAIR LABOUR PRACTICE.
Fact of the Case:
The petitioner, a Trade Union of workmen employed in the Public Works Department, filed a complaint before the Industrial Court, Nasik, under Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the Act) on behalf of 14 workmen working in the Public Works Department of State of Maharashtra. The complaint alleged that the concerned 14 workmen had been served with retrenchment orders on 2-7-1987 terminating their services with effect from 9-8-1987. The petitioner Union had raised an industrial dispute, inter alia, with regard to the conditions of service of the workmen of the Public Works Department carried on the Daily Wage Estabishment, Work Charged Establishment and Temporary Establishment. By the said dispute, one demand made was that any workman who had worked on any one or more of the said Establishments, for a period of one year or more, should be made permanent and taken on the permanent Establishment and given all the consequential benefits. This dispute was admitted in conciliation by the Conciliation Officer on 18th September, 1984, under section 12(1) of the Industrial Disputes Act, 1947. Pending the proceedings in conciliation, the first respondent terminated the services of the 14 concerned workmen on 2-7-1987 on the ground that they were temporary.
Finding of the Court:
The Industrial Court erred in law and misdirected itself in coming to the conclusion that there was no breach of section 33(1)(a) of the Industrial Disputes Act. The circumstances clearly showed that there was breach of section 33(1)(a) of the Industrial Disputes Act. Once the conclusion is reached that there was breach of section 33(1)(a), it is only a short hop therefrom to the conclusion that there is an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act in view of the judgment of the Supreme Court in S.G. Chemical's case (supra).
Issues: Whether the retrenchment of the concerned workmen by the respondents amounts to an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act.
Ratio Decidendi: The Supreme Court in S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Tradings Ltd. and another held that Item 9 of Schedule IV of the Act was wide enough to accommodate within itself the breach of any statute which per proprio vigore, must be read as part and parcel of the employment contract itself. Any breach of such a statute, in the view of the Supreme Court, would amount to failure to implement award, settlement or agreement within the meaning of Item 9 of Schedule IV of the Act.
Final Decision: The impugned order of the Industrial Court is, therefore, liable to be quashed and set aside which I hereby do. It is held that the retrenchment of the concerned workmen by the respondents amounts to an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. They shall be entitled to the consequential relief of reinstatement and back wages for the period of their unemployment. The order of reinstatement and back wages shall be carried into effect within eight weeks from today failing which, in addition to other consequences, the back wages shall carry simple interest at 12 per cent per annum from the date on which they ought to have been paid, until payment.
2. The petitioner is a Trade Union of workmen employed in the Public Works Department. The petitioner-Union filed a complaint before the Industrial Court, Nasik, under Items 5, 9 and 10 of Schedule IV of the Act on behalf of 14 workmen working in the Public Works Department of State of Maharashtra. It alleged that the concerned 14 workmen had been served with retrenchment orders on 2-7-1987 terminating their services with effect from 9-8-1987. The petitioner Union had raised an industrial dispute, inter alia, with regard to the conditions of service of the workmen of the Public Works Department carried on the Daily Wage Estabishment, Work Charged Establishment and Temporary Establishment. By the said dispute, one demand made was that any workman who had worked on any one or more of the said Establishments, for a period of one year or more, should be made permanent and taken on the permanent Establishment and given all the consequential benefits. This dispute was admitted in conciliation by the Conciliation Officer on 18th September, 1984, under section 12(1) of the Industrial Disputes Act, 1947. Pending the proceedings in conciliation, the first respondent terminated the services of the 14 concerned workmen on 2-7-1987 on the ground that they were temporary. Subsequently the Conciliation Officer made a Failure Report dated 7-9-1987 and the Industrial Dispute came to be referred for adjudication of the Industrial Tribunal by a reference dated 2-3-1988. On these facts, about which there is no dispute, the petitioner contended before the Industrial Tribunal that the action of termination of services of its member-workmen amounted to an alteration of the conditions of service applicable to them in regard to a matter connected with the dispute which was admitted in conciliation. Since the said alteration was prejudicial to the interest of workmen, it amounted to the contravention of the provisions of section 33(1)(a) of the Industrial Disputes Act inasmuch as such change had not been brought out with the express permission of Conciliation Officer before whom the proceedings were pending. The petitioner also contended that the retrenchment was bad for want of publication of the Seniority Notice and for failure to follow the rule of 'last come first go' enunciated in section 25-c, of the Industrial Disputes Act. It was, therefore, pleaded before the Industrial Court that the retrenchment of the concerned 14 workmen amounted to unfair labour practice under Items 5, 9 and 10 of Schedule IV of the Act. The Industrial Court rightly rejected the contention based on want of publication of seniority list and non-compliance with section 25-G of the Industrial Disputes Act. The Industrial Court found that these contentions had not been established factually. On the question as to whether there was contravention of section 33(1)(a) of the Industrial Disputes Act, the Industrial Court took the view that the workmen on whose behalf of the complaint had been filed were not workmen concerned in the conciliation proceedings and further that the termination of their services did not amount to breach of the provisions of section 33(1)(a) of the Industrial Disputes Act. This order of the Industrial Court is impugned in the present petition.
3. Mr. Kochar, learned Advocate appearing for the petitioner, rightly did not impugn the findings of the Industrial Court on the issue of want of publication of seniority list and contravention of section 25-G of the Industrial Disputes Act. He concentrated in attacking the finding of the Industrial Court that there was no breach of the provis
