Sarabhai M. Chemicals v. Additional Labour Commissioner
2014-06-25
PARESH UPADHYAY
body2014
DigiLaw.ai
JUDGMENT : Paresh Upadhyay, J Heard Mr.Keyur Gandhi, learned advocate for the petitioner and Ms.Asmita Patel, learned Assistant Government Pleader for Respondent No.1 - the State authorities. Mr.H.M.Jamdar - the President of the contesting Respondent No.4 - Union is heard on different dates, at length. 2. The petitioner employer is before this Court with the case that, the individual References of 58 workmen, which are pending before the Labour Court, Baroda, being Reference No.653 to 710 of 1994, are required to be heard with another Reference, being Reference (Old) No.179 of 1988, which, on being remanded by this Court is renumbered as Reference (New) No.102 of 1996, and which is pending before the Industrial Tribunal, Baroda. According to petitioner company, this is required because, the subject matter in these proceedings are inter-connected and inter-dependent, and in the event these two proceedings are conducted before two different forums, it may lead to passing of the conflicting orders, which would add to the multiplicity of proceedings, which would not be in the interest of the workmen either. It is indicated that the appropriate authority of the Government was already moved in this regard, but the request is rejected by the Commissioner of Labour, Gujarat State, vide communication dated 17.11.2012, as reiterated vide communication dated 12.07.2013, on the ground that the Government does not have power to do so. The said decision is indicated to be pursuant to the application, which was made by the petitioner company, pursuant to the observations of the Division Bench of this Court contained in the order recorded on Letters Patent Appeal No.729 of 2008, dated 04.08.2008. 3. Mr.H.M.Jamdar, President of the Respondent No.4 - Union has contested this petition. It is submitted that, the claim of the petitioner company is not maintainable on more than one grounds. Firstly, because the identical issue was raised before this Court in Special Civil Application No.6164 of 2008 and the same was rejected vide Judgment dated 22.04.2008. Further, the said judgment was carried in appeal, being Letters Patent Appeal No.729 of 2008, and even the Division Bench did not interfere. It is further submitted that, this point is also concluded by the decision of this Court recorded on Special Civil Application No.6322 of 1994 dated 18.07.1994.
Further, the said judgment was carried in appeal, being Letters Patent Appeal No.729 of 2008, and even the Division Bench did not interfere. It is further submitted that, this point is also concluded by the decision of this Court recorded on Special Civil Application No.6322 of 1994 dated 18.07.1994. Attention of this Court is also invited to the order dated 16.09.1994 recorded on Miscellaneous Civil Application No.1697 of 1994, which was for review of the above referred order dated 18.7.1994 passed in Special Civil Application No.6322 of 1994. Attention of this Court is also invited to the decision of this Court recorded on Special Civil Application No.2519 of 1995 and cognate matters decided on 06.05.1996. Attention of the Court is further invited to the judgment of this Court in Special Civil Application No.2111 of 1993 and cognate matters, recorded on 19.7.1996, 30.07.1996, 31.07.1996 and 01.08.1996. Mr.Jamdar has further contended that, the References in question are made to the Labour Court, considering the provisions of the Industrial Disputes Act, 1947 read with Schedule-II, while the Reference which is pending before the Industrial Tribunal, Baroda is the subject matter falling under Schedule-III of the Act, and thus, both the controversies can not be clubbed together and on this additional ground also, this petition needs to be dismissed. 4. Before the objections raised by the respondent Union are dealt with, to appreciate the controversy in the present petition, reference is required to be made to the judgment of this Court (Coram: Honourable Mr.Justice M.R.Call, as His Lordship then was) recorded on Special Civil Application No.2111 of 1993 and cognate matters dated 01.08.1996, which has substantial bearing on the present petition. The facts and circumstances leading to the said group of petitions, and the findings recorded, and the ultimate directions given by this Court in the said judgment, are reproduced as under, to the extent it is necessary. "1. All these four Special Civil Applications are directed against the Award passed by the Industrial Tribunal, Gujarat at Ahmedabad on 29-1-93 in Reference (IT) No.179/88 between Sarabhai Chemicals, Baroda on one side and Chemical Labour Union, Chemical Mazdoor Sabha and the concerned workmen on the other side. Whereas all these petitions are directed against the above referred impugned Award, challenge in each is based on identical facts and questions of law, all these four petitions are decided by this common judgment and order. 2.
Whereas all these petitions are directed against the above referred impugned Award, challenge in each is based on identical facts and questions of law, all these four petitions are decided by this common judgment and order. 2. Sarabhai M. Chemicals, which is a Division of Abalal Sarabhai Enterprises, was decided to be closed in January 1988. Having taken a decision to close down the Sarabhai M. Chemicals at Baroda, the Company preferred a Special Civil Application No.82/88 challenging the vires of S.25-O of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') on 12-1-88 and on 12-1-88 itself an ad interim order was passed in the aforesaid Special Civil Application against the prosecution of the Company and its official. This ad interim order dated 12-1-88 was sought to be vacated on 10-2-88 by filing a purshis to create a congenial atmosphere for negotiations and it was vacated on 10-2-88 by the court on the basis of the purshis as aforesaid as has been given out by the parties. 3. The Company filed an Application on 20-2-88 seeking permission to close down the entire undertaking i.e. Sarabhai M. Chemicals under S.25-O of the Act in the prescribed form XXX under Rule 82(b)(1) of the Gujarat Industrial Disputes Rules, 1966 (hereinafter referred to as 'the Rules'). This Application was dealt with by the Labour Commissioner of Gujarat. While this Application was being dealt with and pending before the Labour Commissioner, settlements under S.2(p) of the Act were arrived at between the employer and the Chemical Labour Union of Baroda on 9-4-88 and between the employer and the Chemical Mazdoor Sabha on 10-4-88 respectively. The terms of settlement in both the settlements are common. Through these settlements, the Scheme of Voluntary Retirement in its revised form with the terms contained therein was accepted by both the sides and it was held out that after the receipt of the applications for Voluntary Retirement it would be possible to determine as to how many workmen desired to leave the services of the Company voluntarily and, therefore, by 15-5-88 the Company will gradually start providing jobs to as many workmen as found necessary to start working Vitamin 'C' Plant and the ancillary section/departments thereto provided the Company would have received at least 600 applications for Voluntary Retirement.
It was further held out in the settlements that for the remaining workmen i.e. after those who opt for Voluntary Retirement and those who are absorbed by the Company, the parties agreed to make a joint application to the Commissioner of Labour on or before 18-4-88 requesting him to make a joint Reference to the Industrial Tribunal under the provisions of S.10(2) of the Act for adjudication and the terms of the Reference, which was agreed between the parties in this settlement, was as under: "Whether the demand of the Company not to work the Fine Chemical Plant is justified? If yes, what relief the workmen would be entitled to on being discharged as a result of not working the Fine Chemical Plant". On 10-4-88 itself the Chief Executive of Sarabhai M.Chemicals sent a letter to the Unions informing that while working Vitamin 'C' Plant and its related process, the Company will absorb the workmen on the basis of the seniority category wise of the Plant as a whole i.e. not restricting to seniority of Vitamin 'C' Plant only subject to the fact that for around 25 to 30 key positions absorption will not be on the basis of seniority only. The Company in accordance with this settlement also notified the Scheme of Voluntary Retirement and in pursuance of this Scheme of Voluntary Retirement, the Company received 306 Applications from various employees seeking Voluntary Retirement. On 18-4-88 an application filed for and on behalf of Sarabhai M. Chemicals, Chemical Labour Union and Chemical Mazdoor Sabha was presented before the Specified Authority i.e. Commissioner of Labour, Ahmedabad in the closure case No.5/88 stating therein that the parties had agreed to abide by the terms of S.2(p) settlements arrived at between them on 9-4- 88 and 10-4-8 i.e. settlements which was already on record and through this application dated 18-4-88 an amendment in the settlement was sought by all the parties that those of the workmen, who are entitled to get more than Rs.50000/- as their statutory dues without the extra amount of 15 days wages per year of service and Rs.20000/- would be paid in full on the date of the Company accepting resignation of such workmen.
With this amendment in the settlements, the parties jointly requested the Commissioner of Labour i.e. Specified Authority to pass orders accordingly and dispose of the closure application filed by the company in terms of said 2(p) settlements with the modification as aforesaid. Thereupon the Commissioner of Labour and Specified Authority under the Industrial Disputes Act sent letter dated 19-4-88 to the Factory Manager with reference to the closure Application dated 20-2-88 addressed to the Labour and Employment Department, Government of Gujarat, Gandhinagar, which was received by the office of the Commissioner on 22-2-88, that a decision had been taken under S.25-O(2) of the Act and the same is forwarded herewith. It was also stated therein that the same may be displayed on the notice board of the Management in such a way that it is easily readable and exhibited. It is this decision dated 19-4-88, which gave rise to the Reference before the Industrial Tribunal and the order which was passed by the Specified Authority on the basis of the settlements and joint request by all the sides, opened a Pandora's box of controversies whereas the intention was to put an end to all the controversies by passing an order on the basis of settlements and the joint request. The Specified Authority appointed under S.25-O of the Act and the Commissioner of Labour while passing the order dated 19-4-88 recorded that in view of the fact that during the pendency of this Application a settlement was arrived at between the applicant-unit and the authorised representatives of the two Labour Unions, the terms of which include the disposal of this also in the light of such settlement, this Application is disposed of as rejected. Thus, while rejecting the Company's application seeking permission for the closure of the whole Unit under S.25-O of the Act, the Specified Authority further ordered that in pursuance of the joint application made by the applicant-Unit and the Chemical Labour Union and Chemical Mazdoor Sabha praying that a Reference be made for adjudication to the Industrial Tribunal under S.10(2) of the Act, for the issues mentioned therein, the Competent Authority is also directed hereby to make a reference mentioned above for adjudication to the Industrial Tribunal.
It is after passing of this order dated 19-4-88 by the Specified Authority appointed under S.25-O that the Deputy Labour Commissioner, Ahmedabad passed an order dated 26-4-88 referring the dispute to the Industrial Tribunal, Ahmedabad and sent the said order dated 26-4-88 alongwith covering letter dated 26-4-88 to the Industrial Tribunal, Ahmedabad referring therein the Labour Commissioner's order dated 19-4-88. The terms of Reference as per this order dated 26-4-88 were as under: "Whether the Company's demand for closure of Fine Chemical Plant was justified? If so to what relief the workmen were entitled as a consequence of the closure of Fine Chemical Plant." This Reference was registered with the Industrial Tribunal, Ahmedabad as Reference (IT) No.179/88. This Reference was adjudicated by the Industrial Tribunal and ultimately on 29-1- 93 the Award was passed granting permission to the Company to close down its Fine Chemical Division and to discharge 531 employees. It is the common case of the parties that after the aforesaid order of the Industrial Tribunal passed on 29-1-93 the Company retrenched/discharged 517 employees as against the 531 employees, who were permitted to be discharged by the Tribunal because 14 of them had already ceased to be in service in the mean time on account of attaining the age of superannuation or for some other reason. It is this award dated 29-1- 93, which is under challenge in these Special Civil Applications filed at the instance of Chemical Labour Union, Gujarat General Kamdar Panchayat, M.C. Kanvilkar and others and Sashikant Anandrao Shigvan and others in the four separate Special Civil Applications which have been filed in this court. The operative part of the impugned Award in para 28 shows that the Company's Application No.30/91, which had been moved seeking adjustment of the wages which had been paid during the intervening period, was rejected and simultaneously the closure of Fine Chemical Plant was permitted with the permission to retrench or discharge 531 surplus employees subject to the 11 conditions mentioned therein. 4. -------- 5. Before I proceed to deal with other contentions, I may first deal with the objection, which is taken by Ms. Sangita Pahwa, appearing on behalf of respondent-workmen Nos.3 to 102 in Special Civil Application No.2111 of 1993 and Mr. H.M. Jamdar, who has appeared as party in person-respondent No.4 in Special Civil Application No.7318 of 1993, with regard to the territorial jurisdiction.
Sangita Pahwa, appearing on behalf of respondent-workmen Nos.3 to 102 in Special Civil Application No.2111 of 1993 and Mr. H.M. Jamdar, who has appeared as party in person-respondent No.4 in Special Civil Application No.7318 of 1993, with regard to the territorial jurisdiction. --- I called upon Ms.Pahwa and the respondent Shri Jamdar to point out from the record as to whether such an objection was taken by them before the Industrial Tribunal at Ahmedabad and it was clearly given out that such an objection was not taken before the Industrial Tribunal at Ahmedabad and the same is being argued for the first time before this Court. ------ 6. ---- 7. ---- 8. ----- 9. Once the Reference made to the Industrial Tribunal is held to be in order, the question arises as to whether the Award passed by the Industrial Tribunal in such Reference, which is impugned in these petitions, is sustainable or not. This Award runs in two parts; one is the part whereby the permission for the closure of Fine Chemical Plant has been granted by holding that the closure of Fine Chemical Plant was justified and the other part runs with regard to the consequences of closure i.e. in case the Fine Chemical Plant is allowed to be closed by the Company, what relief could be granted to the concerned workmen. I may first deal with the question as to whether the permission for closure of Fine Chemical Plant, which has been granted by the Industrial Tribunal, is sustainable or not. 10. ----- 11. ----- 12. I have considered the various submissions made in this regard by both the sides.
I may first deal with the question as to whether the permission for closure of Fine Chemical Plant, which has been granted by the Industrial Tribunal, is sustainable or not. 10. ----- 11. ----- 12. I have considered the various submissions made in this regard by both the sides. Having gone through the impugned Award passed by the Industrial Tribunal it can not be said that the Tribunal has permitted the closure of Fine Chemical Plant without any material and without any justification..........The relevant factors which weighed with the Industrial Tribunal in permitting the closure of Fine Chemical Plant are the losses sustained by the Company, viability report, the idle wages being paid to large number of surplus employees despite the scheme of voluntary retirement and such a finding arrived at by the Industrial Tribunal on consideration of material, which were relevant and also supported by the evidence oral as well as documentary including the contemporaneous evidence, can not be said to be a finding arrived at by the Industrial Tribunal without any material or unwarranted in the facts of this case and, therefore, I do not find any justification or basis to interfere with that part of the finding of the Industrial Tribunal whereby it has permitted the closure of the Fine Chemical Plant of the respondent-Company. 13. The controversy however would not end merely because the closure is held to be justified. It was the further matter for consideration before the Industrial Tribunal as to what consequences such closure should follow and that in case of closure of Fine Chemical Plant what relief could be given to the workmen. In doing so, the Tribunal has permitted the retrenchment of 531 workmen subject to the conditions which are mentioned under para 28 of the Award. So far as the conditions are concerned, such conditions are just and proper and are also permissible under law. But the question is as to whether the permission for retrenchment of 531 employees can be said to have been given in accordance with law. The Industrial Tribunal has considered these aspects of the matter in paras 16 and 17 of the impugned Award. According to the Industrial Tribunal, as mentioned in para 17, there were 1286 employees in all.
But the question is as to whether the permission for retrenchment of 531 employees can be said to have been given in accordance with law. The Industrial Tribunal has considered these aspects of the matter in paras 16 and 17 of the impugned Award. According to the Industrial Tribunal, as mentioned in para 17, there were 1286 employees in all. 304 applications had been received from the employees seeking voluntary retirement and out of these 304 employees, request of voluntary retirement of 141 employees was accepted and the request of rest of the employees were not accepted. It is also recorded that certain employees had withdrawn their request of voluntary retirement and out of the employees, who had sought voluntary retirement, certain employees had been detained by the Company on the ground that some of them were going to retire shortly on attaining the age of superannuation and some of them were required for specialised and essential service by the Company and in the meantime about 87 employees had attained the age of superannuation or had died, 527 employees had been absorbed in the Vitamin 'C' Plant and, therefore, 531 employees were surplus as per the disclosure made in the affidavit of Mr. Mehta, who had been examined as a witness on behalf of the Company. It was argued on behalf of the petitioner-workmen that the Company had acted in an arbitrary manner and pick and choose policy had been adopted while identifying the 531 employees. It was also argued by Ms. Pahwa as also Mr. Jamdar that no list of 531 employees was produced before the Industrial Tribunal at any stage. It was also submitted that they had applied for a certified copy of such list, but the office of the Industrial Tribunal replied that no such list was available in the record and, therefore, the certified copy of such list could not be given. It was also submitted that although the closure was permitted only in respect of Fine Chemical Plant, employees of Vitamin 'C' Plant were also being retrenched and as such a serious prejudice has been caused to the employees working in the Vitamin 'C' Plant. .......
It was also submitted that although the closure was permitted only in respect of Fine Chemical Plant, employees of Vitamin 'C' Plant were also being retrenched and as such a serious prejudice has been caused to the employees working in the Vitamin 'C' Plant. ....... The sum and substance of the various submissions made in this regard is that the Tribunal has committed a serious error in arriving at the figure of 531 employees to be permitted to be retrenched and while arriving at this finding due regard has not been given to the reasons or material which was germane for the purpose of arriving at such a finding and, therefore, this finding, permitting the retrenchment of 531 employees and the direction accordingly, stands vitiated and the large number of workmen have, therefore, suffered a serious prejudice on that count and such a finding, as given by the Industrial Tribunal and the consequential direction thereto, can not be sustained in the eye of law. 14. ...... 15. I have considered the submissions made on behalf of both the sides. I find that; (i) So far as the question of retrenchment to be made effective on the basis of the common seniority is concerned, no exception thereto can be taken because it is the admitted factual position that the posts in the various Plants were interchangeable and employees of Fine Chemical Plant only could not be taken in isolation for the purpose of retrenchment, more particularly when it is clear from the facts of this case that large number of employees even of Fine Chemical Plant were absorbed in the Vitamin 'C' Plant and, therefore, if at all retrenchment had to take place it could take place only on the basis of the common seniority of the employees subject to the condition that the common seniority should be category wise. (ii) It is wrong to say that list of 535 employees was not produced before the Industrial Tribunal because such list has been exhibited and it has found reference in the evidence. A wrong communication by the Registrar of the Tribunal which is contrary to record cannot give rise to any argument in favour of any party. (iii) It is also wrong to say that viability report was not there before the Industrial Tribunal because the same had also been exhibited and it has found reference in the evidence.
A wrong communication by the Registrar of the Tribunal which is contrary to record cannot give rise to any argument in favour of any party. (iii) It is also wrong to say that viability report was not there before the Industrial Tribunal because the same had also been exhibited and it has found reference in the evidence. May be that the Registry of the Industrial Tribunal had informed those, who had applied for certified copy, that no such list was available in the record. It appears to be a case of some mistake because in fact the document is exhibited and it is clearly established that it is very much a part of the record before the Industrial Tribunal. (iv) The contention which was raised by Mr.Shahani based on Rule 81 of the Industrial Disputes (Gujarat) Rules, 1966 is of no consequence. It does cast an obligation upon the employer to maintain a category wise seniority list and it is also required to be pasted on the notice board at a conspicuous place at least before 7 days of the actual date of retrenchment, but such a list could be used only at the time when the actual retrenchment was to be made effective and, therefore, during the pendency of the Reference before the Tribunal whether such a list was pasted on the notice board or not can not have any bearing on the validity of the Award as such, nor it can impinge upon the findings of the Industrial Tribunal even if it is found that such a list had not been prepared and maintained. Such a list is to be used only at the time of retrenchment; the retrenchment had to take place after the Award and, therefore, the absence of such a list can not have any impact on the findings arrived at by the Tribunal and the grievances with regard to the breach of S.25G or the breach of Rule 81 are all grievances pertaining to the time after the dae of the Award and such grounds are of no avail for the purpose of assailing the findings of the Industrial Tribunal.
(v) The Industrial Tribunal has arrived at the figure of 531 surplus employees by accepting the figures as were given out on behalf of the respondent-Company and in doing so, after taking note of the absorption of 527 employees in the Vitamin 'C' Plant and after taking note of 141 employees, whose request for voluntary retirement had been accepted and 87 employees, who had either retired, resigned or ceased to be in the employment otherwise, it just made a mathematical calculation of subtracting the total 527+87+141 out of 1286 and treated the remaining figure as the figure of surplus employees. Such a course of action adopted by the Tribunal does not appeal to the reason and can not be said to be convincing. The question is that at the very initial stage when the Company itself had contemplated and wanted that they must receive 600 applications seeking voluntary retirement and had received only 306 applications for voluntary retirement and yet it did not find it convenient to accept all those applications and instead it accepted the request of only 141 employees, how it could be said that merely because it was not convenient for the Company to pay a lumpsum amount to all the persons, who were seeking voluntary retirement, the burden of such non acceptance should fall and tilt so as to increase the number of surplus employees. I had called upon Mr. Nanavati to point out as to whether there was any power retained with the employer under the scheme of voluntary retirement so as to refuse the request of voluntary retirement, but no such power could be pointed out from the voluntary retirement scheme.
I had called upon Mr. Nanavati to point out as to whether there was any power retained with the employer under the scheme of voluntary retirement so as to refuse the request of voluntary retirement, but no such power could be pointed out from the voluntary retirement scheme. It was agreed by the employer that those who seek voluntary retirement, they will be dealt with in accordance with the terms agreed for the purpose of making lumpsum payment and at that time they very well contemplated, rather they wanted about 600 employees to come forward to seek the voluntary retirement and it was also known to them that if 600 employees come to seek voluntary retirement what lumpsum amount will have to be paid to all these employees and, therefore, the financial difficulty to pay the lumpsum amount to all those, who had sought voluntary retirement, could not be a ground for rejecting the request of the seekers of voluntary retirement so as to enhance the magnitude of surplus staff and to precipitate the retrenchment of more number of employees. The submission of Mr. Nanavati is that so far as the retirement is concerned, it does not depend upon the number of the employees who seek retirement, rather it depends upon the work and the manufacturing capacity of the operative plant. What has to be examined is the impact of refusal of the permission to seek voluntary retirement on the number of surplus employees. The Tribunal has also not examined as to why only 527 employees could be absorbed in the Vitamin 'C' Plant and why more number of employees could not be absorbed therein. Mr. Nanavati submitted that there were common service and common supporting department and in such departments there were 638 employees and, therefore, it can not be said that closure of Fine Chemical Plant should have resulted into the retrenchment of only 265 employees.
Mr. Nanavati submitted that there were common service and common supporting department and in such departments there were 638 employees and, therefore, it can not be said that closure of Fine Chemical Plant should have resulted into the retrenchment of only 265 employees. Concept of common supporting department was never urged and placed for adjudication before the Industrial Tribunal and it appears that this submission is oblivious of the fact that in the Company not only Fine Chemical Plant and Vitamin 'C' Plant were there, but as per the basic application, on the basis of which the permission for closure was sought, the Company itself had named four plants i.e. Fine Chemical Plant, Vitamin 'C' Plant, Sorbitol Plant and Choline Plant and, therefore, it can not be said that all the employees, who were working in any Plant other than Vitamin 'C' Plant or Fine Chemical Plant belong to the common service and in any case such an important aspect having direct effect on the number of surplus employees was not addressed before the Tribunal, nor the same was adjudicated and the figure of 531 was arrived at by a mechanical mathematical exercise by taking note of the employees, who had been absorbed in Vitamin 'C' Plant, the employees who had retired as a result of voluntary retirement or ceased to be in service on account of retirement, death, resignation etc. Even if certain number of employees had withdrawn their request for voluntary retirement, there were more than 200 employees, who were available for voluntary retirement and in their case the request for voluntary retirement could not be refused and even if it was refused, it could not be used for the purpose of magnifying the number of surplus employees so as to be subjected to retrenchment.
True it is that the Company had at one stage given out that it may make exception in certain cases and it was also clearly held out in the letter dated 10-4-88 (page 328) that while the process of restarting shall be based on categorywise seniority, around 25 to 30 key positions will not be on the basis of seniority only, I find that much more than 25 to 30 positions have been retained in utter disregard of the principle of the seniority and therefore, such a course of action cannot be held to be permissible even if the Company is allowed the benefit of the contents of the letter dated 10-4-88 and it is clear that all these important aspects, which should have been duly considered while arriving at the figure of 531, have not been considered in proper perspective and this figure has been arrived at in a mechanical manner, as stated above. (vi) It is clearly made out that in arriving at the figure of 531, the Tribunal has not addressed itself to all the relevant considerations and the concept of common service department was never addressed for the consideration of the Industrial Tribunal, which was in fact a consideration germane in arriving at the requisite number of employees to be retrenched. It cannot be said that only 265 employees could be affected because as per the Company itself there were 265 employees working in the Fine Chemical Plant and the Fine Chemical Plant was permitted to be closed down. Nevertheless the fact remains that the effect of the closure of the Fine Chemical Plant on the question of surplus staff should have been considered in a separate and distinct manner by the Industrial Tribunal on the basis of the factual data and by calling upon the Company to show as to what was the further strength of the number of staff which was required to be retrenched in case of the closure of Fine Chemical Plant. It appears that having held that the permission for the closure of the Fine Chemical Plant was justified, the Industrial Tribunal accepted all the figures as had been given out with reference to the employees working and absorbed in the Vitamin 'C' Plant and those figures, which were given with regard to the voluntary retirement etc.
It appears that having held that the permission for the closure of the Fine Chemical Plant was justified, the Industrial Tribunal accepted all the figures as had been given out with reference to the employees working and absorbed in the Vitamin 'C' Plant and those figures, which were given with regard to the voluntary retirement etc. and by making simple mechanical mathematical exercise of deduction and subtraction, the figure of 531 was arrived at. Who should be the employees to be retrenched was an entirely different matter. Identification of such employees was a question to come up later on. First aspect which was to be considered was as to the number of employees to be affected and once the principle of common seniority of all the departments is accepted, the only thing which remains of substance is the total number of employees to be affected. Now who should be those employees, that will depend upon the category wise seniority list and such common category wise seniority list should form the basis. 16. In the facts and circumstances of this case and for reasons as above, while the permission for the closure of Fine Chemical Plant, as granted by the Industrial Tribunal by the impugned Award, does not warrant interference, I hold that the finding of the Industrial Tribunal in arriving at the figure of 531 surplus staff is not sustainable. 17. At one stage I did not feel inclined to remand the matter and with the help of the learned counsel made an attempt if the finality can be arrived at to such numbers on the basis of the record available before this Court, because the matter had already prolonged for number of years, but Mr. Shahani submitted that such exercise can not be taken up before this Court and it was also submitted that the requisite material for this purpose was not available before this Court and the matter, therefore, deserves to be remanded.
Shahani submitted that such exercise can not be taken up before this Court and it was also submitted that the requisite material for this purpose was not available before this Court and the matter, therefore, deserves to be remanded. Even after going through the documents and pleadings, written submissions and the statements, which are available, I do find that such an exercise can not be effectively undertaken, more particularly in view of the factors, which have already been considered in detail, and such matters with regard to the determination of the strength of the common service staff and as to how many number of employees in fact could be absorbed in the Vitamin 'C' Plant and also to consider in what number of cases the request for voluntary retirement was wrongly declined and the details about the employees, who were working in the Sorbitol Plant and Choline Plant effectively at the relevant time or as to whether the Choline Plant is a part of the Fine Chemical Plant are all matters which require consideration based on evidence. 18. Upshot of the aforesaid discussion is that these Special Civil Applications partly succeed. The finding and the decision of the Industrial Tribunal on the question that the closure of Fine Chemical Plant was justified does not warrant any interference. I also do not find any illegality in the 11 conditions, which have been imposed by the Industrial Tribunal for the purpose of effecting retrenchment. However, so far as the direction that as a result of the closure of Fine Chemical Plant it will be permissible for the Company to retrench 531 employees is concerned, this part of the Award is set aside and the matter is remanded back to the Industrial Tribunal at Baroda instead of Ahmedabad as per the consent and request of all the parties. The Industrial Tribunal at Baroda would consider afresh the question as to how many employees were required to be retrenched as a result of the closure of the Fine Chemical Plant and while considering this question, it will also be open for the Industrial Tribunal to record any evidence, which either of the parties may be willing to produce by way of oral evidence or any documentary evidence and it shall also keep in view the observations, which have been made in this regard in this Judgment.
Looking to the fact that the dispute is pending since 1988 and is being remanded now, the Industrial Tribunal may consider the question of giving priority to it and may decide this controversy alongwith the appropriate consequential ancillary directions, keeping in view the fact that certain employees, who had accepted the amount at the time of retrenchment, may be willing to come back if they are found to be entitled and certain employees, who have not accepted the amount, may be now interested to accept the amount or to continue in service, if they are found to be entitled. The Tribunal may decide the remanded proceedings at the earliest, but in no case later than the period of six months from the date the certified copy of this order is served upon the Industrial Tribunal at Baroda and the entire record of the Reference is received by the Industrial Tribunal at Baroda from the Industrial Tribunal at Ahmedabad. The Industrial Tribunal, Ahmedabad is also directed to send the entire record o f the Reference (IT ) No. 179 of 1988 decided on 29-1-93 to the Industrial Tribunal at Baroda. The Company shall prepare a common seniority list of 1286 employees category wise by 26-8-96 or before 2-9-96 and copies of such list shall also be made available to the responsible office bearers of the respective Unions. The Company has also ostensibly agreed to supply a copy of such list to Mr. Jamdar and it will be open for the Union to file their objections, if any. It is agreed by the learned counsel for the petitioners that it will not be necessary to supply the copy of such list to each and every employee. Of course one copy thereof will be placed on the notice Board at a conspicuous place in the premises of the Factory and it will be the responsibility of the Unions to inform its members to check the list in the notice Board. All the parties in these petitions are agreeable to appear before the Industrial Tribunal at Baroda without waiting for the notice from the Industrial Tribunal, Baroda for the remanded proceedings on 2-9-96.
All the parties in these petitions are agreeable to appear before the Industrial Tribunal at Baroda without waiting for the notice from the Industrial Tribunal, Baroda for the remanded proceedings on 2-9-96. A copy of this order may be sent to the Industrial Tribunal at Baroda and also to the Industrial Tribunal at Ahmedabad so that the remanded proceedings may commence before the Industrial Tribunal at Baroda immediately after the receipt of the record of Reference (IT) No.179/88 (decided on 29-1- 93 by Industrial Tribunal, Ahmedabad) from the Industrial Tribunal at Ahmedabad. 19. Rule is made absolute accordingly in all the petitions with no order as to costs. Direct service is permitted." 4.1 It is indicated that, the above judgment was challenged before the Division Bench by more than one parties, including the employer and contesting respondent both. The appeal filed by the employer was Letters Patent Appeal No.1040 of 1996 and the appeal filed by Mr.Jamdar was Letters Patent Appeal No.1046 of 1996. The batch of those appeals came to be disposed off vide judgment dated 02.09.1997. The appeals filed by the employer were allowed and the appeal filed by Mr.Jamdar was dismissed. By the said judgment, the judgment of the learned single judge was quashed and set aside. 4.2 It is further indicated that, against the said judgment of the Division Bench, the aggrieved parties - the Unions had approached Honourable the Supreme Court of India and before the Apex Court it was agreed that, the judgment and order of learned single judge, recorded on Special Civil Application No.2111 of 1993 and cognate matters be restored. The proceedings before Honourable the Supreme Court of India stood concluded vide order 12.12.2000 recorded on Civil Appeal Nos.1856 to 1860 of 1998. Thus, those subsequent developments, of Letters Patent Appeal and Special Leave Petitions, are relevant only to the extent that the judgment of this Court dated 01.08.1996 passed in Special Civil Application No.2111 of 1993 and cognate matters holds the field. 5. There is one more dimension of the matter.
Thus, those subsequent developments, of Letters Patent Appeal and Special Leave Petitions, are relevant only to the extent that the judgment of this Court dated 01.08.1996 passed in Special Civil Application No.2111 of 1993 and cognate matters holds the field. 5. There is one more dimension of the matter. Before the above referred directions came to be issued by this Court on 01.08.1996 while upholding the validity of the award of the Industrial Tribunal in Reference (IT) No.179 of 1988 dated 29.01.1993, in part, the effect of the said award had already taken place and as the consequence thereof 531 employees were treated to be surplus and had already stood retrenched. The 58 References in question are of those of 58 employees, who were part of the said group of 531 employees. On one hand, those 531 employees, in different groups, continued with their challenge to the award of the Industrial Tribunal resulting into their retrenchment, in petitions being Special Civil Application No.2111 of 1993 and cognate matters, and at the same time, they also moved the labour machinery with the grievance that they were illegally terminated. It was this dispute, which in the opinion of the Government, was not required to be sent for adjudication separately, since that was part of the consequence of the very closure of the industry, which was the subject matter of above referred award of the Industrial Tribunal in Reference (IT) No. 179 of 1988 and challenge thereto, as referred above. At that stage, these 58 workmen moved this Court by filing separate petition being Special Civil Application No.6322 of 1994, without joining the employer as party respondent. In the said petition, the only respondent, which was the Government, maintained its stand that dispute with regard to discontinuance of service of those 58 workmen were not required to be referred to, for adjudication separately, since that was part of the consequence of the very closure of the part of the industry, which was the subject matter of above referred award of the Industrial Tribunal in Reference (IT) No. 179 of 1988 and challenge thereto. It is in the presence of only those parties and with that material, directions were issued by this Court (Coram: Honourable Mr.Justice S.M.Soni, as His Lordship then was) vide judgment dated 18.07.1994, that Government may reconsider.
It is in the presence of only those parties and with that material, directions were issued by this Court (Coram: Honourable Mr.Justice S.M.Soni, as His Lordship then was) vide judgment dated 18.07.1994, that Government may reconsider. It is this direction which resulted in referring the dispute by the Government to the Labour Court, Baroda for adjudication as to whether the discontinuance of service of these 58 employees is legal or otherwise. The employer moved this Court for review, however it was rejected vide order dated 16.09.1994, principally on the ground that the employer was not party to the said proceedings, and additionally that the directions of this Court had already stood complied with by that time. It is in this background that these 58 references are being heard by the Labour Court, Baroda. 6. As noted above, after the directions of this Court (Coram: Honourable Mr.Justice S.M.Soni, as His Lordship then was) dated 18.07.1994, which in substance was dealing with the consequence of the award of the Industrial Tribunal in the Reference pertaining to the closure, that very Reference is reopened by this Court (Coram: Honourable Mr.Justice M.R.Calla, as His Lordship then was) as per the judgment dated 01.08.1996 recorded on Special Civil Application No.2111 of 1993 and cognate matters. The said Reference is then renumbered as Reference No.102 of 1996, by the Industrial Tribunal, Baroda and is pending for adjudication, at present. 7. The net effect of the above is that, in the Reference No.102 of 1996, the Industrial Tribunal, Baroda is examining the issue as to, as the consequence of closure of the part of the industry, which is upheld by this Court, how many employees were required to be retrenched, and if not 531 - as decided by the Tribunal earlier, how many, and who, were required to be retrenched. Further, at the same time, the Labour Court, Baroda is ceased of the References (being References No.653 to 710 of 1994) as to whether the services of those 58 employees, who are also part of those 531 employees, were legally discontinued or not. 8.
Further, at the same time, the Labour Court, Baroda is ceased of the References (being References No.653 to 710 of 1994) as to whether the services of those 58 employees, who are also part of those 531 employees, were legally discontinued or not. 8. Keeping in view the above factual aspects, this Court finds that, hearing of the above two proceedings separately would only add to the complications which have already cropped up by this time, but that can be avoided or reduced, by working out an arrangement that, the hearing of the main Reference i.e. Reference No.102 of 1996 may continue with the Industrial Tribunal, Baroda, but the hearing of the References pertaining to those 58 employees, which the Labour Court, Baroda is ceased of, being References No.653 to 710 of 1994, be transferred to the Industrial Tribunal, Baroda, and both the proceedings be heard together by the Industrial Tribunal, Baroda. At this juncture, it needs to be noted that, it is not in dispute that, the compensation payable to the workmen pursuant to the award of the Industrial Tribunal, which is upheld by this Court in part, is paid to and is received by all the 531 employees, including the present 58 employees. Their accepting this compensation, may be with protest or without prejudice to their rights and contentions, would not change the complexion of the present controversy as to whether these References are required to be heard with the principal Reference or not. 9. There is an additional aspect which necessitates this course of action. It cannot be disputed that, the discontinuance of service of those 58 workmen was the part of the retrenchment of 531 workmen, pursuant to the closure of the part of the industry, as upheld by this Court. This retrenchment therefore would be squarely covered by item No.10 of the third schedule of the Industrial Disputes Act, 1947. The effect thereof would be that, even if those References were required to be made separately for adjudication, they were required to be made to the Industrial Tribunal and not to the Labour Court.
This retrenchment therefore would be squarely covered by item No.10 of the third schedule of the Industrial Disputes Act, 1947. The effect thereof would be that, even if those References were required to be made separately for adjudication, they were required to be made to the Industrial Tribunal and not to the Labour Court. When this Court (Coram: Honourable Mr.Justice S.M.Soni, as His Lordship then was), gave directions to the Government to reconsider, on Special Civil Application No.6322 of 1994 dated 18.07.1994, it was to make Reference qua retrenchment of those 58 workmen to the competent forum, which in the said case should have been to the Industrial Tribunal, which, instead is made to the Labour Court by the Government, may be erroneously, which has added to these complications. The concerned workman is well within his right to content that, his Reference be adjudicated on merits, but he cannot be permitted to agitate that, that adjudication has to be by the Labour Court and not by the Industrial Tribunal. The reluctance on the part of the concerned workman for adjudication of their References, with the principal reference - the award of which has resulted in their discontinuance of service, speaks a lot about their contribution in the complications which have cropped up by this time. 10. In above circumstances, without disturbing or modifying the directions given by this Court, in any of the above referred judgments, an arrangement can still be worked out, where both the sets of References can be heard together, to avoid any further complications in the matter. Whether the Government could have or should have done it or not, is not the issue which needs to be adjudicated in this petition. Suffice it to say that, in the circumstances noted above, this Court finds that, by not accepting the say of the employer, ultimately, the directions given by this Court in different judgments referred above, would be rendered meaningless, and to avoid that situation also, these References are required to be ordered to be heard together.
Suffice it to say that, in the circumstances noted above, this Court finds that, by not accepting the say of the employer, ultimately, the directions given by this Court in different judgments referred above, would be rendered meaningless, and to avoid that situation also, these References are required to be ordered to be heard together. The onus is more on this Court to work out any such arrangement also for the reason that, the Government had already refused to make References of those 58 workmen separately on the ground that, their discontinuance of service was the consequence of the closure of the industry, the issue which this Court was already ceased of at the relevant time. Even then, it is this Court which had given directions to the Government to reconsider. Keeping this additional factor in view, it is the duty of this Court to streamline the procedural aspect. 11. The question may still remain, as to whether, in the circumstances noted above, that would prejudice any party in any manner. To this, this Court finds that, the said course is not only permissible and desirable but is inevitable, and further that, it would not prejudice anybody muchless the concerned workman, but if the said course is not adopted, it would certainly lead to multiplicity of the proceedings and recording of conflicting orders. It is this situation, which this Court is redressing to the extent possible. Considering the totality, this Court finds that, the ends of justice would meet by giving the directions as contained in the operative part of this judgment. 12. Before recording those directions, the objections put forward by the respondent Union need to be dealt with. 12.1 The first objection is that this petition is not maintainable in view of the judgment of this Court (Coram: Honourable Mr.Justice H.K.Rathod, as His Lordship then was) rendered in the Special Civil Application No.6164 of 2008 dated 22.04.2008, which was not interfered with by the Division Bench in Letters Patent Appeal No.729 of 2008. So far this objection is concerned, let it be recorded, what was the subject matter of that petition. One Mr.R.V.Shah had raised a dispute, for which Reference is made to the Labour Court, Baroda being Reference (LCV) No.1060 of 1998, in which the company had raised various preliminary objections about its maintainability in its written statement dated 24.12.1999.
So far this objection is concerned, let it be recorded, what was the subject matter of that petition. One Mr.R.V.Shah had raised a dispute, for which Reference is made to the Labour Court, Baroda being Reference (LCV) No.1060 of 1998, in which the company had raised various preliminary objections about its maintainability in its written statement dated 24.12.1999. In the said Reference, the company gave an application Exh.13 to the Labour Court to decide the preliminary issue about the maintainability of the said Reference first. The said application was rejected by the Labour Court vide order dated 15.02.2008. It is against this order, a petition was filed before this Court being Special Civil Application No.6164 of 2008 which is dismissed by this Court vide judgment dated 22.04.2008. It is this judgment of the learned single judge of this Court, which was not interfered with by the Division Bench in Letters Patent Appeal No.729 of 2008. Thus, the effect of the said decision is only that, the Reference filed by the said Mr.Shah is maintainable. The point for consideration before this Court is not as to whether the 58 References in question are maintainable or not, but the point is, as to whether these References need to be heard with Reference No. 102 of 1996, by the Industrial Tribunal, Baroda or should be permitted to be adjudicated separately by the Labour Court, Baroda. Under these circumstances, this objection is rejected. 12.2 The second objection of the respondent Union is based on the decision of this Court recorded on Special Civil Application No.6322 of 1994 dated 18.07.1994 and subsequent order dated 16.09.1994 recorded on Miscellaneous Civil Application No.1697 of 1994, in the said petition. Further, reference is made to the group of matters being Special Civil Application No.2519 of 1995 and cognate matters, decided on 06.05.1996. In this regard, let it be noted what those petitions were. Before this Court pronounced the judgment on 01.08.1996 on Special Civil Application No.2111 of 1993 and cognate matters with regard to the award in the principal Reference pertaining to the closure, being award dated 29.01.1993 on Reference No. 179 of 1988, the effect of the said award had already taken place and as the consequence thereof 531 employees had already stood retrenched. The present 58 employees, are part of those 531 employees.
The present 58 employees, are part of those 531 employees. On one hand, those 531 employees, in different groups, continued with their petitions being Special Civil Application No.2111 of 1993 and cognate matters and also moved the labour machinery with the grievance that they were illegally terminated. It was this dispute, which in the opinion of the Government, was not required to be sent for adjudication separately, since that was part of the consequence of the very closure of the industry, which was the subject matter of above referred award and challenge thereto. At that stage, these 58 employees moved this Court by filing separate petition being Special Civil Application No.6322 of 1994, without joining the employer as party respondent, on which, the Government maintained its stand. It is in presence of only those parties and with that material, directions were issued by this Court vide judgment dated 18.07.1994 that, Government may reconsider. It is this direction which has resulted in referring the dispute by the Government to the Labour Court, Baroda for adjudication, as to whether the discontinuance of service of those 58 employees is legal or otherwise. The employer had moved this Court for review, however it was rejected vide order dated 16.09.1994, principally on the ground that the employer was not party to the said proceedings, and additionally that the directions of this Court had already stood complied with, by that time. It is in this background that these 58 References are made by the Government and they are being heard by the Labour Court, Baroda. The emphasis of the directions of this Court, in this regard, at the best, can be read to the extent that, the stand of the Government not to make References was not legal and it was asked to reconsider, but it would be wrong to read those directions to mean that the References were directed to be made to the Labour Court and Labour Court alone, and not to the Industrial Tribunal. The objection of the respondent Union that in view of those directions, now it is impermissible to ask the Industrial Tribunal to adjudicate those References, would be misreading of those directions. Further, when those References were made, it was challenged before this Court by the employer. The said challenge has failed in the group of petitions being Special Civil Application No.2519 of 1995 and cognate matters.
Further, when those References were made, it was challenged before this Court by the employer. The said challenge has failed in the group of petitions being Special Civil Application No.2519 of 1995 and cognate matters. The effect thereof is again that the References are maintainable, and not that they cannot be heard by the Industrial Tribunal. Thus, these objections are rejected. 12.3 So far the reliance on the judgment of this Court in Special Civil Application No.2111 of 1993 and cognate matters dated 01.08.1996 is concerned, the part of which is extracted here above, this Court finds that, it supports the case of the company in the present case, and not the respondent Union. 12.4 So far the contention with regard to difference in the subject matters of Schedule II and Schedule III of the Industrial Disputes Act, 1947 is concerned, the same not only makes the course of action being adopted by this Court permissible but inevitable. Reference can be made to entry number 10 of Schedule III which pertains to retrenchment of workmen and closure of establishment. In the present case, it is not in dispute that the discontinuance of service of these 58 employees is as the consequence of the award of the Tribunal, which led to retrenchment of 531 employees, which also included the present 58 employees. These 58 employees may be well within their rights to contend that they ought not to have been retrenched, but they cannot agitate that their grievance be not examined by the Industrial Tribunal but be examined by the Labour Court and Labour Court alone. The insistence in this regard is not only unreasonable but is impermissible in view of entry no. 10 of the third schedule of the Industrial Disputes Act, 1947. 12.5 In view of above, this Court finds that, none of the objections raised on behalf of the respondent Union can be upheld. They are accordingly rejected. 13. Considering the totality, this Court finds that, the say of the petitioner needs to be accepted and the objections raised on behalf of the respondent Union, needs to be, and for the reasons recorded above, are rejected. 14. In the result, this petition is allowed and the following directions are given.
They are accordingly rejected. 13. Considering the totality, this Court finds that, the say of the petitioner needs to be accepted and the objections raised on behalf of the respondent Union, needs to be, and for the reasons recorded above, are rejected. 14. In the result, this petition is allowed and the following directions are given. 14.1 The References, being Reference No. 653 to 710 of 1994, which are pending before the Labour Court, Baroda, are ordered to be transferred to the Industrial Tribunal, Baroda for adjudication. 14.2 The said References shall be heard and adjudicated by the Industrial Tribunal, Baroda with the principal Reference being Reference No.102 of 1996. 15. After the dictation of this judgment is over, Mr.Jamdar for the Respondent No.4 - Union has prayed that, the directions contained in this judgment be stayed for some time to enable him to move the higher forum, which is strongly objected by Mr.Gandhi, learned advocate for the petitioner. Considering the totality and with a view to see that, challenge if any to this judgment remains meaningful to the aggrieved party, it is ordered that, the directions contained in this judgment shall be given effect to, not before 31.07.2014. Writ Petition allowed.