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IN THE HIGH COURT OF BOMBAY
K.K. Tated, J.
Indian Smelting and Refining Company Limited – Appellant
Versus
Anthony D' Almeida and another – Respondents
Writ Petition No. 316 of 1999
Decided On : 03-05-2011
For the Appellant : P.K. Rele, S.C. with Piyush Shah, Vinod Tayade
For the Respondent: Y.M. Pendse
The settlement reached during conciliation proceedings is binding on all members of the union, and a complaint for the same cause of action is barred by res judicata. Additionally, the complaint filed after 19 months from the date of termination is barred by limitation.
Headnote:
Industrial Court - ULP - MRTU and PULP Act, 1971 - Item 5, 9, 10 - Summary of Acts and Sections
Fact of the Case:
The petitioner challenges the order of the Industrial Court, Thane, holding the respondent entitled to reinstatement and 70% back wages. The respondent filed a complaint alleging unfair labor practices under Item 5, 9, and 10 of the MRTU and PULP Act, 1971, seeking reinstatement, back wages, and continuity of service. The petitioner argued that the complaint was barred by limitation and res judicata, and that the Industrial Court lacked jurisdiction.
Finding of the Court:
The Industrial Court held in favor of the respondent, finding the petitioner guilty of unfair labor practices and directing reinstatement with 70% back wages.
Issues: 1. Whether the settlement between the Sangh and the petitioner is binding on the respondent. 2. Whether the petitioner violated the provisions of the Industrial Disputes Act. 3. Whether the complaint filed by the respondent is barred by res judicata and limitation.
Ratio Decidendi: The settlement between the Sangh and the petitioner is binding on the respondent. The petitioner did not violate the Industrial Disputes Act. The complaint filed by the respondent is barred by res judicata and limitation.
Final Decision: The judgment and order of the Industrial Court are set aside, and the complaint filed by the respondent is dismissed.
K.K. Tated, J.
Heard learned senior counsel for petitioner and learned counsel for respondents. By this petition under Articles 226 and 227 of Constitution of India, petitioner challenges the order dated December 24, 1998 passed by Industrial Court, Thane, in Complaint (ULP) No. 554/1989 holding that the respondent original complainant is entitled to reinstatement and also 70% back wages.
2. Being aggrieved by the said order dated December 24, 1998 passed by the Industrial Court, Thane, the petitioner original respondent No. 1 preferred present writ petition under Article 226 and 227 of the Constitution of India.
3. A few facts of the matter are as under :
The petitioner-company is a Public Limited Company incorporated under the provisions of the Indian Companies Act, 1956, having its head office at Bhandup, Mumbai and the Ferrous Foundry Works at Thane engaging about 600 employees.
4. The respondent original complainant filed Complaint (ULP) No. 554/1989 in the Industrial Court at Thane, in the matter of unfair labour practices as defined under Item 5, 9 and 10 of Schedule IV to the M.R.T.U. and PULP Act, 1971. The respondent was in employment of petitioner company since August 1, 1975 as senior fitter in Maintenance Department. However, the respondent left the services of the petitioner company from April 20, 1977 and rejoined on March 7, 1978 Since then the respondent was in the employment with the petitioner company.
5. On or about October 1986, the employees of the petitioner-company put up a demand for the bonus. However, the same was declined by the petitioner-company. Thereafter, the petitioner-company declared lock out from January 10, 1987 Because of; declaration of lock out, Association of Engineering Workers filed a Complaint (ULP) No. 16/1987 against the petitioner alleging that the lock up declared by them is illegal. The Industrial Court passed an interim order on; March 10, 1987 to the effect that the notice dated January 9, 1987 issued by the petitioner does not constitute lock out.
6. The Association then filed a Revision which was ultimately dismissed on August 26, 1987. However, the members of Association of Engineering Workers who were working at Thane Foundry continued to resort to the illegal strike from January 10, 1987 to March 27, 1987 disregarding the notices issued by the petitioner. Therefore, the petitioner issued a final notice individually to all the workmen calling upon them to report to duty latest by March 2, 1988 However, the workmen did not, respond and therefore, the petitioner issued individual notices of discharge on March 24, 1988 to 321 workmen then on the rolls including the respondent and also displayed the names of the workmen to whom the notices were issued on the notice board outside the main gate of the company/factory. In view of the illegal strike resorted to by the workmen for a period of one year, the petitioner-company by way of abundant caution discharged them under the model standing order and forwarded alongwith the notice, cheque for 13 days wages in lieu of notice.
7. During the same period, another Union namely, Engineering and General Mazdoor Sangh filed a Complaint (ULP) No. 128/1988 before the Labour Court, Thane, on April 28, 1988 praying for reinstatement of the said 321 workmen with full wages and continuity of services from March 24, 1988 and for declaration of the letter dated March 24, 1988 as null and void.
8. In the mean while, the Engineering and General Mazdoor Sangh, the Complainant in Complaint (ULP) No. 128/1988 requested the petitioner-company to start the factory and assured that the workmen would give maximum co-operation in achieving maximum production and will maintain discipline and good behaviour and no further demands of the financial nature would be made. After detailed discussion and negotiation the petitioner agreed to absorb 120 workmen out of 257, 64 having already resigned and further agreed to give compensation to the balance at the rate
