The
contention of the learned senior counsel for the
appellant that the workmen are barred from raising
the industrial dispute on the ground of estoppel,
is also rejected by this Court in view of the fact
that estoppel is a principle of equity which deals
with the effect of contract and not with its
cause. It does not mean that a void or voidable
contract cannot be adjudicated by the Industrial
Tribunal/courts merely because the concerned
workmen have accepted the voluntary retirement as
pleaded by them and other benefits from the
appellant as per the case of National Insurance
Co. Ltd. (supra).
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.246 OF 2009
M/S ARIANE ORGACHEM PVT. LTD. …APPELLANT
Vs.
WYETH EMPLOYEES UNION & ORS. …RESPONDENTS
Citation;(2015) 7 SCC561
V. GOPALA GOWDA, J.
I.A.No.2 of 2015 in C.A.No.247 of 2009 for
substitution of the name of the appellant-Company
is ordered.
2. These appeals are directed against the
common impugned judgment and order dated 16.8.2007
passed by the High Court of Judicature at Bombay
in Writ Petition No.444 of 2007, whereby the High
Court quashed the order of the Deputy Commissioner
of Labour, Mumbai, dated 14.8.2006 and directed
him to refer the industrial dispute of the
concerned workmen as per their demand dated
14.11.2005, for adjudication of the matter to the
Industrial Tribunal under Section 10(1)(d) of the
Industrial Disputes Act, 1947 (for short “the
Act”).
3. Since both the appeals are filed against the
common impugned judgment and order of the High
Court, for the sake of convenience, we would refer
to the brief facts of C.A.No.246 of 2009 which are
stated hereunder:
The appellant-Company, M/s. Ariane Orgachem
Pvt. Ltd. was established to manufacture and
market drugs which are manufactured by it. The
appellant-Company, have taken over the alleged
loss incurring pharmaceutical factory of M/s.
Wyeth Ltd. respondent No.3 herein
(appellant-Company in C.A.247 of 2009), situated
at 146, LBS Marg, Ghatkopar, Mumbai, along with
its permanent employees, pursuant to an agreement
dated 25.6.2004 and the sale deed dated 30.6.2004.
The letters were issued to the workmen by the
appellant in this regard, to the effect that they
would be employed under its management without any
interruption in their services.
4. On 30.08.2004, the appellant-Company acquired
the erstwhile manufacturing facility of M/s. Wyeth
Ltd.-respondent No.3 and on 31.8.2004, the
respondent No.3 issued letters to its workmen
working in its erstwhile factory, informing them
about the sale and transfer of the ownership and
management of the said factory to the
appellant-Company in accordance with the provision
of Section 25-FF of the Act. They were further
informed that their services will not be
interrupted due to such transfer and their
services will be treated as continuous and
uninterrupted for the purpose of retiral/terminal
benefits. Thereafter, all the workmen whose
employment came to be transferred from M/s Wyeth
Ltd. to the appellant-Company started drawing
their wages/salary and all other benefits like
advance, LTA and leave, etc. from the appellant.
5. On 2.9.2004, the respondent no.1-Wyeth
Employees Union (for short “the Union”), which is
the recognized Union under the Provisions of thePage 4
C.A. No. 246 of 2009 4
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971
(for short “the MRTU & PULP Act”), filed Complaint
(ULP) No. 534 of 2004, before the Industrial Court
challenging the sale and transfer of employment of
the employees but no interim relief was granted by
the Industrial Court, hence, all the workmen came
on the rolls of appellant-Company and started
drawing wages from it.
6. The appellant claimed that it has framed
Voluntary Retirement Scheme (for short “VRS”) on
12.4.2005 for the workmen, offering amounts, tax
free, to each workman with all other dues such as
gratuity, ex-gratia, provident fund, leave
encashment etc. which was operative from 12.4.2005
to 30.4.2005. On 15.04.2005, 45 out of the total
143 workmen applied for the said VRS and collected
the VRS payments and the remaining workmen
collected the VRS payments on 20.04.2005 and
21.04.2005. After the payment of the VRS benefits,
the workmen were relieved from their services by
the appellant-Company.Page 5
C.A. No. 246 of 2009 5
7. It is further stated by the
appellant-Company that on 26.4.2005, the first
respondent-Union through its General Secretary,
unconditionally withdrew Complaint (ULP) Nos. 534
of 2004, 714 of 2004 and 771 of 2004, confirming
to the court that all the workmen had availed the
VRS and the Union did not want to pursue the
cases.
8. After several months of accepting the VRS,
the respondent-Union raised the demand seeking
their reinstatement in the Company of respondent
no.3. In response to the said demand, the
appellant-Company replied that all the workmen had
taken the VRS benefits and they were not the
workmen of either the appellant-Company or the
third respondent’s Company anymore, therefore, no
industrial dispute could be raised by or on their
behalf by the respondent-Union. On 12.12.2005, the
respondent-Union, wrote a letter to the Assistant
Commissioner of Labour, seeking his intervention
in respect of their demand with the Company. On
01.08.2006, the Conciliation Officer sent thePage 6
C.A. No. 246 of 2009 6
failure report to the Assistant Commissioner of
Labour, subsequent to which on 14.08.2006, the
office of the Deputy Labour Commissioner which
took cognizance of the failure report declined to
make an order of reference to the Industrial
Tribunal stating thereby that there was no
industrial dispute in existence between the
parties.
9. Thereafter, the newly elected leadership of
the first respondent-Union under the
representation of its new General Secretary
aggrieved by the order of refusal to make an order
of reference to the Industrial Tribunal by the
Deputy Commissioner of Labour filed Writ Petition
No. 444 of 2007 before the High Court urging
various legal grounds and questioning the
correctness of the same.
10. The High Court in exercise of its power
quashed the order dated 14.8.2006 passed by Deputy
Commissioner of Labour, Mumbai, who has refused to
make an order of reference to the Industrial
Tribunal for its adjudication of the industrialPage 7
C.A. No. 246 of 2009 7
dispute between the parties. The High Court has
held that the acceptance of the benefits by the
concerned workmen from the appellant may not
establish the fact that no force or compulsion was
exercised by the appellant and this is the most
contentious and disputed question of fact which
could not have been decided by the State
Government in exercise of its administrative
power. The High Court has held that the subjective
satisfaction of the subject matter of an
industrial dispute between the parties by the
State Government is therefore, vitiated in law and
making an order of reference in respect of the
concerned workmen is absolutely essential in this
regard. Thus, the High Court by issuing a writ of
mandamus, directed the Deputy Labour Commissioner
to make an order of reference to the Industrial
Tribunal with regard to the demand of industrial
dispute raised by the Union dated 14.11.2005 on
behalf of the concerned workmen, for its
adjudication under Section 10(1)(d) of the Act.
Aggrieved by the impugned judgment of the HighPage 8
C.A. No. 246 of 2009 8
Court, these appeals have been filed by the
appellant-Companies, praying this Court to set
aside the same contending that the High Court has
exceeded its jurisdiction in passing the impugned
judgment and order.
11. It is urged by Mr. C.U. Singh, the learned
senior counsel on behalf of the appellant-Company
that the VRS benefits were accepted by the
concerned workmen between 15.4.2005 to 25.4.2005
and the cheques which were issued to them towards
their voluntary retirement benefits were encashed
by them. Therefore, raising the industrial dispute
by the concerned workmen after lapse of 7 months,
from the date of acceptance of the VRS benefits,
is wholly untenable in law. It has been further
contended by him that many concerned workmen have
cleared their bank loans such as housing loans,
Co-operative Society/Co-operative bank loans and
the appellant-Company has received intimations
from the Banks/Societies to stop deducting and
remitting loan instalments from their salaries.
12. It has been further contended by him that thePage 9
C.A. No. 246 of 2009 9
former Joint Secretary of the respondent
no.1-Union had withdrawn the Complaint (ULP) Nos.
534 of 2004 and 714 of 2004 and Complaint (ULP)
No.771 of 2004, after stepping into the witness
box and confirming to the Court that all the
workmen had availed the VRS benefits and the first
respondent-Union did not wish to pursue the cases.
Therefore, the demand raised by the first
respondent-Union on behalf of the concerned
workmen through its General Secretary contending
that they have not availed the VRS benefits under
the scheme is only an afterthought and the same
does not amount to an industrial dispute and
therefore, there is no dispute for the Industrial
Tribunal to adjudicate. The Deputy Labour
Commissioner has rightly arrived at the conclusion
on the basis of the facts on hand and declined to
make an order of reference to the Industrial
Tribunal for adjudication of the same. This
important aspect of the case has not been taken
into consideration by the High Court while
quashing the order of refusal to make an order ofPage 10
C.A. No. 246 of 2009 10
reference to the Industrial Tribunal and it has
erroneously issued a writ of mandamus to the
Deputy Commissioner of Labour against the
appellant by directing him to make an order of
reference of the industrial dispute on the demands
raised by first respondent-Union on behalf of the
concerned workmen.
13. It is further contended by the learned senior
counsel on behalf of the appellant that the first
respondent-Union has not made any allegation
against the appellant, regarding the alleged
coercion and fraud played by the appellant in
obtaining the voluntary retirement letters, either
in the demands submitted to the appellant or
before the Conciliation Officer. Therefore,
raising the said contention by the first
respondent-Union for the first time before this
Court, without it being first raised before the
Industrial Tribunal and the Conciliation Officer
is not permissible in law as held by this Court in
the case of Bishundeo Narain & Anr. v. Seogeni Rai
& Anr.1 Further, it is contended that in view of
1
(1951) SCR 548Page 11
C.A. No. 246 of 2009 11
Section 59 of the MRTU and PULP Act, there is an
express bar on the first respondent to raise an
industrial dispute against the appellant-Company.
This legal aspect of the case has been considered
by this Court in the cases of M/s. Mahabir Jute
Mills Ltd., Gorakhpur v. Shri Shibban Lal Saxena &
Ors.2 and Govind Sugar Mills Ltd. & Anr. v. Hind
Mazdoor Sabha & Ors.3 Further, the said allegations
made by the first respondent-Union with regard to
the alleged coercion upon the concerned workmen by
the appellant is not factually correct and the
same cannot be considered by this Court as it is a
frivolous and incorrect statement of fact made on
behalf of the first respondent-Union with a view
to raise frivolous industrial dispute against the
appellant-Company and the respondent No.3.
14. The learned senior counsel has further placed
reliance upon the following decisions of this
Court in Bank of India & Ors. v. O.P. Swarnakar &
Ors.4, A.K. Bindal & Anr. v. Union of India &
Ors.5, Punjab National Bank v. Virender Kumar Goel
2
(1975) 2 SCC 818
3
(1976) 1 SCC 60
4
(2003) 2 SCC 721
5
(2003) 5 SCC 163Page 12
C.A. No. 246 of 2009 12
& Ors.6, Punjab & Sind Bank & Anr. v. S. Ranveer
Singh Bawa & Anr.7 and Bank of India & Ors. v. K.V.
Vivek Ayer & Anr.8 in support of the proposition of
law that once the VRS is obtained and accepted by
the concerned workmen along with all other
monetary benefits, the same would amount to
availing benefits of the scheme and no claim can
be made by the concerned workmen against the
employer for its reconsideration and no order of
reference can be made for the industrial dispute
by the appropriate government as the same does not
exist for adjudication. Therefore, the principle
of estoppel is applicable on the concerned workmen
to raise an industrial dispute against the
appellant-Company and the respondent No.3 herein
on the subject matter of voluntary retirement, for
the reason that once they have accepted the
voluntary retirement from their services and
withdrawn all the monetary benefits which were
paid to them by the appellant, they cannot raise
the industrial dispute in this regard as the same
6
(2004) 2 SCC 193
7
(2004) 4 SCC 484
8
(2006) 9 SCC 177Page 13
C.A. No. 246 of 2009 13
is not permissible in law. He has further placed
reliance upon the judgments of this Court in the
cases of Gyanendra Sahay v. Tata Iron & Steel Co.
Ltd.9 and Vice-Chairman & Managing Director,
A.P.S.I.D.C. Ltd. & Anr. v. R. Varaprasad & Ors.10,
wherein the aforesaid principles of law have been
reiterated by this Court.
15. Further, it has been contended by him that
the scope of judicial review power of the High
Court to examine the order passed by the State
Government in exercise of its administrative power
in the writ petition is very limited as has been
held by this Court in the cases of Secretary,
Indian Tea Association v. Ajit Kumar Barat & Ors.11
and ANZ Grindlays Bank Ltd. v. Union of India &
Ors.12 Therefore, the learned senior counsel has
submitted that the impugned judgment and order is
required to be interfered with by this Court in
exercise of its jurisdiction as the exercise of
judicial review power by the High Court is bad in
law which cannot be allowed to sustain.
9
(2006) 5 SCC 759
10 (2003) 11 SCC 572
11 (2000) 3 SCC 93
12 (2005) 12 SCC 738Page 14
C.A. No. 246 of 2009 14
16. On the other hand, Mr. Sanjay Singhvi, the
learned senior counsel on behalf of the first
respondent-Union has sought to justify the
impugned judgment and order passed by the High
Court contending that the Deputy Labour
Commissioner acting as a delegatee of the State
Government has erroneously refused to make an
order of reference to the Industrial Tribunal on
the demands raised by the workmen and he has
committed a grave error in law and therefore, the
High Court has rightly exercised its extraordinary
and supervisory jurisdiction and quashed the same
by issuing a writ of mandamus. The learned senior
counsel has further contended that the Deputy
Commissioner of Labour in fact and in law is not a
delegatee of the State Government and therefore,
he could not have legally made an order of refusal
to make an order of reference of the industrial
dispute to the Industrial Tribunal for its
adjudication. It has been further contended by him
that the signatures of the concerned workmen were
obtained on blank papers and there was no VRSPage 15
C.A. No. 246 of 2009 15
scheme introduced by the appellant. Hence, the
question of seeking voluntary retirement from
their services does not arise. Further, the
respondent No.3-M/s. Wyeth Ltd., the Company in
which the concerned workmen were working initially
had intimated the stock exchange about the
stoppage of its manufacturing operations at the
Company’s plant at LBS Marg, Ghatkopar, Mumbai.
Therefore, it is clear that the said Company
wanted to discontinue and close down the factory
and terminate the services of the concerned
workmen from their services. However, being a
profitable Company, with profit making operations,
the Company has resorted to achieve its end
through a subterfuge by obtaining the signatures
of the concerned workmen on the blank papers by
using undue influence, coercion etc. in order to
circumvent the provisions of Section 25(O) of the
Act. Therefore, the alleged voluntary retirement
of the concerned workmen, is a disputed question
of fact, as the workmen are contending that they
have not voluntarily submitted any application forPage 16
C.A. No. 246 of 2009 16
voluntary retirement from their services to the
appellant-Company which fact is seriously disputed
by the appellant and therefore, the same is
required to be adjudicated by the competent
Industrial Tribunal and not referring the said
dispute between the parties by the State
Government to it is an arbitrary and unjustified
exercise of power which is not within the
jurisdiction of the State Government, in exercise
of its administrative power under the provisions
of Section 10(1)(d) read with the Third Schedule
of the Act. For the above reason itself, the High
Court is justified in quashing the impugned order
in the writ petition by passing the impugned
judgment and order which does not warrant
interference by this Court in exercise of its
appellate jurisdiction in these appeals.
17. It has been further contended by the learned
senior counsel for the first respondent-Union that
the appellant-Company is owned and controlled by
the Runwal group, which is a builder/developer and
it has entered into a sham arrangement with M/sPage 17
C.A. No. 246 of 2009 17
Wyeth Ltd. on 30.8.2004 purporting it to be an
alleged transfer of the ownership of its
undertaking in favour of the appellant. However,
it is a transfer of the assets of the Company only
without the transfer of the business of the
appellant in the connected appeal (respondent no.3
herein) and the same cannot be said to be a
genuine transfer of undertaking of M/s Wyeth Ltd.
in accordance with law and in terms of Section 25
FF of the Act. The said action of
appellant-Company and the respondent no.3 herein
is in violation of the provisions of Section 25(O)
of the Act.
18. Thus, it is urged by the learned senior
counsel that in view of the aforesaid reasons the
question of the alleged transfer of the workmen
from M/s. Wyeth Ltd. to the appellant-Company is
only a ruse and was done only with a view to
acquire the property for real estate development.
Therefore, the factual contentious issue of the
alleged voluntary retirement of the concerned
workmen and the acceptance of the monetaryPage 18
C.A. No. 246 of 2009 18
benefits by them need to be adjudicated by the
competent Industrial Tribunal under an order of
reference of the industrial dispute which has to
be referred by the State Government. This aspect
of the matter has not been considered by the State
Government at the time of passing an order
declining to exercise its administrative power to
make an order of reference to the Industrial
Tribunal for its adjudication of the existing
industrial dispute between the workmen and the
employer effectively.
19. Further, it has been contended by the learned
senior counsel that the alleged VRS benefits said
to have been given to the concerned workmen is a
false plea pleaded by the appellant-Company before
the Conciliation Officer to justify their illegal
action and the same requires scrutiny by the
Industrial Tribunal on the basis of the evidence
that has to be adduced by the parties. The
findings of fact need to be recorded by it after
adjudication of the dispute that is required to be
referred to it by the State Government in exercisePage 19
C.A. No. 246 of 2009 19
of its administrative power under the provisions
of the Act.
20. It has been further contended by the learned
senior counsel on behalf of the first respondent
that after the resignation of the earlier General
Secretary of the first respondent-Union was
accepted, a new Committee of the respondent-Union
was elected. Thereafter, it decided to take up the
issue of illegal termination of services of the
concerned workmen by the appellant-Company.
Further, the Deputy Labour Commissioner, who has
acted as the delegatee of the State Government,
has not looked into the fact that it took about 2
to 3 months for the new Committee of the first
respondent-Union to take over the affairs of the
Union which was running under the guidance of its
former General Secretary and to act in the matter
of the forced termination of the concerned workmen
from their services. The petition submitted to the
Conciliation Officer by the respondent-Union
specifically pleads that “neither any voluntary
scheme was ever framed nor published by thePage 20
C.A. No. 246 of 2009 20
appellant” and the concerned workmen have not
retired from their services voluntarily. This
aspect of the matter has not been taken into
consideration by the Conciliation Officer as well
as the appropriate State Government at the time of
passing the order refusing to make an order of
reference to the Industrial Tribunal for
adjudication of the industrial dispute. The State
Government has also not noticed the relevant fact
that the former General Secretary, without the
proper authorisation from either the first
respondent-Union or the concerned workmen,
withdrew the earlier complaints referred to supra,
filed on behalf of the concerned workmen. Further,
the State Government has failed to consider the
fact that the appellant-Company has stated about
the VRS being published for the concerned workmen
for the first time, only before it and not before
the Conciliation Officer in the earlier
proceedings. Further, due to coercion and fear,
the workmen were compelled to sign on the blank
papers and the purported voluntary retirementPage 21
C.A. No. 246 of 2009 21
letters alleged to have been submitted to the
appellant were not considered by it. The first
respondent-Union called upon the appellant-Company
to produce the Resolution passed by its Board
before the Conciliation Officer, with regard to
the alleged VRS and the order of approval said to
have been granted by the Income Tax Authority for
such scheme. The same were not produced by the
appellant before the Conciliation officer. The
State Government at the time of passing its order
ought to have considered this important factual
aspect of the matter before refusing to pass an
order to make a reference to the Industrial
Tribunal regarding the dispute between the parties
in relation to their illegal termination. For this
reason also, the High Court is justified in
quashing the order of refusal to make an order of
reference and therefore, it is rightly justified
in issuing a writ of mandamus to the State
Government to make an order of reference to the
jurisdictional Industrial Tribunal for
adjudication of the industrial dispute between thePage 22
C.A. No. 246 of 2009 22
parties.
21. The learned senior counsel has further urged
that the failure report of the dispute was
addressed to the Additional Commissioner by the
Conciliation Officer on 1.8.2006, but the Deputy
Commissioner of Labour called for the file from
the Conciliation Officer and declined to exercise
his power under Section 10(1)(d) read with the
Third Schedule of the Act, without adverting to a
single contention urged on behalf of the workmen
in the petition submitted before the Conciliation
Officer by the first respondent-Union. The
non-consideration of the claim made by the
respondent-Union on behalf of the concerned
workmen by the Deputy Commissioner of Labour at
the time of refusing to pass an order of
reference, not only vitiates the impugned order in
the writ petition on account of non application of
mind by the alleged delegatee of the State
Government but also vitiated in law for the reason
that the Deputy Commissioner of Labour is not the
competent officer to make an order of reference toPage 23
C.A. No. 246 of 2009 23
the Industrial Tribunal or to refuse to make an
order of reference to the Industrial Tribunal. The
Additional Commissioner of Labour is the only
competent authority who is the delegatee of the
State Government as per the notification dated
9.8.2003 issued by the Ministry of Labour,
Government of Maharashtra and therefore, he alone
could have passed an order of reference under
Section 10(1)(d) of the Act. Thus, the order of
refusal to make an order of reference of the
existing industrial dispute between the parties to
the Industrial Tribunal is void ab initio in law
as the same has not been exercised by competent
officer as the delegatee of the State Government.
On this ground itself the impugned judgment and
order of the High Court is justified in quashing
the order of refusal to make an order of reference
regarding the industrial dispute to the Industrial
Tribunal.
22. With reference to the above mentioned rival
legal contentions urged on behalf of the parties,
we have carefully examined the impugned judgmentPage 24
C.A. No. 246 of 2009 24
and order, with a view to find out whether the
High Court is justified in quashing the order of
refusal to make an order of reference regarding
the industrial dispute raised by the first
respondent-Union on behalf of the concerned
workmen to the Industrial Tribunal for its
adjudication. We answer the same in the
affirmative in favour of the first
respondent-Union for the following reasons:-
It is an undisputed fact that the concerned
workmen are the employees of M/s Wyeth Ltd. who is
the respondent no.3 herein and the appellant in
the connected appeal. The contention urged by the
learned senior counsel on behalf of the
respondent-Union is that the alleged transfer of
the undertaking of M/s Wyeth Ltd. in favour of the
appellant-Company is not a genuine transfer and it
is a sham one, as it is a transfer of the assets
of the Company only not the transfer of business
of M/s Wyeth Ltd. Therefore, the same is not in
conformity with the provisions of Section 25FF of
the Act. This aspect of the matter requires
adjudication by the Industrial Tribunal in orderPage 25
C.A. No. 246 of 2009 25
to find out the correctness of the plea, whether
the transfer of the undertaking M/s Wyeth Ltd. in
favour of the appellant is genuine or not and
whether the concerned workmen have accepted the
retiral benefits and other monetary claims
voluntarily, as pleaded by the appellant. This
complicated question of fact and law could not
have been decided by the alleged delegatee of the
State Government in exercise of its administrative
power, as he is not the competent authority on
behalf of the State Government to make an order of
reference to the Industrial Tribunal. The
conclusion arrived at by the High Court is
supplemented with the reasons arrived at by this
Court. Therefore, quashing of the order of refusal
to make an order of reference by the High Court is
perfectly legal and valid which need not be
interfered with by this Court in exercise of its
jurisdiction.
23. The other important factual aspect of the case
is whether the voluntary retirement of the
concerned workmen was forced or not is required toPage 26
C.A. No. 246 of 2009 26
be produced by the parties before the Industrial
Tribunal for its detailed examination and
scrutiny. The fact that certain documents were
sought to be summoned at the instance of first
respondent-Union during the conciliation
proceedings from the appellant-Company by the
Conciliation Officer which were not produced by it
is one more important factor which is required to
be considered by the Industrial Tribunal under
Section 10(1)(d) read with the Third Schedule of
the Act in exercise of its original jurisdiction
to resolve the disputed questions of fact.
Further, the VRS produced on record by the
Management gives it the discretion to arbitrarily
fix the compensation varying from Rs.50,000/- to
Rs.7,11,000/-, which if proved, would be
considered as arbitrary and there would be a grave
miscarriage of justice to the concerned workmen.
This aspect of the matter has been ignored by the
Deputy Labour Commissioner, who has erroneously
refused to make an order of reference to the
Industrial Tribunal for its adjudication of thePage 27
C.A. No. 246 of 2009 27
existing industrial dispute.
24. Further, there are serious allegations made
against the appellant-Company by the workmen
regarding the alleged coercion, undue influence
and force used on them for obtaining their
signatures on blank papers, which needs to be
examined very carefully by the Industrial Tribunal
after recording evidence from both the parties.
Prima facie, the absence of documentary evidence
produced by the appellant-Company to show that the
VRS was framed by it and converting the signatures
of the concerned workmen obtained on the blank
papers amounts to forced termination of the
services of the concerned workmen which is a
disputed question of fact which requires
adjudication by the competent Industrial Tribunal
and therefore, the demand regarding the alleged
termination of the concerned workmen is required
to be referred to the Industrial Tribunal by the
State Government. The non consideration of this
aspect of the matter in the order dated 14.08.2006
passed by the Deputy Labour CommissionerPage 28
C.A. No. 246 of 2009 28
highlighting only the factual aspect pleaded by
the appellant-Company unilaterally and not
referring to the facts pleaded on behalf of the
concerned workmen by the first respondent-Union is
once again totally marred by non application of
mind on the part of the Deputy Commissioner of
Labour, apart from the fact that the Deputy Labour
Commissioner has no competency to exercise his
power under the provisions of Section 10(1)(d) of
the Act, either to make reference or to refuse to
make reference to the Industrial Tribunal. On the
above grounds also, the impugned judgment and
order of the High Court is not required to be
interfered with by this Court in these appeals.
Reliance has been placed upon the decision of this
Court by the learned senior counsel on behalf of
the first respondent-Union in the case of National
Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.13,
wherein this Court has held thus:
“26. When we refer to a discharge of
contract by an agreement signed by both
parties or by execution of a full and
final discharge voucher/receipt by one of
the parties, we refer to an agreement or
discharge voucher which is validly and
13 (2009) 1 SCC 267Page 29
C.A. No. 246 of 2009 29
voluntarily executed. If the party who has
executed the discharge agreement or
discharge voucher, alleges that the
execution of such discharge agreement or
voucher was on account of
fraud/coercion/undue influence practiced
by the other party and is able to
establish the same, then obviously the
discharge of the contract by such
agreement/voucher is rendered void and
cannot be acted upon. Consequently, any
dispute raised by such party would be
arbitrable.”
25. Further, the failure report of the
conciliation proceedings is not the sufficient
material evidence to arrive at the conclusion by
the State Government to decline to exercise its
statutory power under the provisions of Section
10(1)(d) read with the Third Schedule of the Act
either to make/or not to make an order of
reference. The refusal to make an order of
reference by the State Government’s delegatee
amounts to determination of the existing dispute
between the parties by the State Government in the
absence of relevant and material evidence on
record which ought not to have been done by him
while exercising his power under Section 10(1)(d)
of the Act. In this regard, the High Court hasPage 30
C.A. No. 246 of 2009 30
rightly placed reliance upon the case of Ram Avtar
Sharma & Ors. v. State of Haryana & Anr.14, the
relevant para of which reads thus:
“11. The appropriate Government being the
Central Government in this case declined
to make a reference as per its order dated
December 9, 1983 in which it is stated
that 'the action of the management in
imposing on the workmen penalty of removal
from service on the basis of an enquiry
and in accordance with the procedure laid
down in the Railway Servants (Discipline &
Appeal) Rules. 1968 is neither malafide
nor unjustified. The appropriate
Government does not consider it necessary
to refer the dispute to the Industrial
Tribunal for adjudication.' Ex facie it
would appear that the Government acted on
extraneous and irrelevant considerations
and the reasons hereinbefore mentioned
will mutatis mutandis apply m respect of
present order of the Government under
challenge. Therefore for the same reasons,
a writ of mandamus must be issued.
12. Accordingly all the writ petitions are
allowed and the rule is made absolute in
each case. Let a writ of mandamus be
issued directing the appropriate
Government in each case namely the State
of Haryana in the first mentioned group of
petitions and the Central Government in
the second petition to reconsider its
decision and to exercise power under
Section 10 on relevant and considerations
germane to the decision. In other words, a
clear case of reference under
Section 10(1) in each case is made out.”
26. Further, the High Court has rightly adverted
14 (1985) 3 SCC 189Page 31
C.A. No. 246 of 2009 31
to various judgments of this Court including
Bombay Union of Jornalists v. State of Bombay
AIR 1964 SC 1617
wherein it was held thus:
”6. ………it would not be possible to accept
the plea that the appropriate Government
is precluded from considering even prima
facie the merits of the dispute when it
decides the question as to whether its
power to make a reference should be
exercised under Section 10(l)read with
Section 12(5), or not. If the claim made
is patently frivolous, or is clearly
belated the appropriate Government may
refuse to make a reference. Likewise, if
the impact of the claim on the general
relations between the employer and the
employees in the region is likely to be
adverse, the appropriate Government may
take that into account in deciding whether
a reference should be made or not. It
must, therefore, be held that and prima
facie examination of the merits cannot be
said to be foreign to the enquiry which
the appropriate Government is entitled to
make in dealing with a dispute under
Section 10(1)……”
Therefore, in the present case, the dispute raised
by the respondent-Union on behalf of the concerned
workmen is neither patently frivolous nor is it a
belated claim of the concerned workmen. The
contention of the learned senior counsel for the
appellant that the workmen are barred from raising
the industrial dispute on the ground of estoppel,
is also rejected by this Court in view of the fact
that estoppel is a principle of equity which deals
with the effect of contract and not with its
cause. It does not mean that a void or voidable
contract cannot be adjudicated by the Industrial
Tribunal/courts merely because the concerned
workmen have accepted the voluntary retirement as
pleaded by them and other benefits from the
appellant as per the case of National Insurance
Co. Ltd. (supra).
27. Having regard to the facts and circumstances
of the case and the contentions urged on behalf of
the learned counsel for the parties, we have come
to the conclusion that these are the disputed
questions of fact in this case, which requires
determination on the basis of evidence by the
Industrial Tribunal and therefore, a valid
reference has to be made to it by the State
Government. The various decisions relied upon by
the learned senior counsel Mr. C.U. Singh on
behalf of the appellant referred to supra arePage 33
C.A. No. 246 of 2009 33
misplaced and have no application to the fact
situation of the present case.
28. Further, the High Court has not considered
another important aspect of the case, namely, that
the Deputy Commissioner of Labour is not entrusted
with the power under Section 10(1) (d) of the Act
as the delegatee of the State Government as per
the new Notification dated 09.08.2003, issued by
the Industries, Energy and Labour Department,
Mantralaya, Mumbai in exercise of its power
conferred under Section 39(b) of the Act which is
produced on record. As per the said notification,
the State of Maharashtra has conferred its power
upon the Labour Commissioner and the Additional
Labour Commissioner to exercise its power under
Section 10(1),(2) & (3) and other provisions of
the Act. There is no other notification produced
by the employer either before the High Court or
this Court to show that the Deputy Labour
Commissioner has got power as the delegatee of the
State Government to make an order of reference
under the provisions of Section 10(1)(d) read withPage 34
C.A. No. 246 of 2009 34
the Third Schedule of the Act to the Industrial
Tribunal. On this ground also, the order of the
Deputy Labour Commissioner, refusing to make an
order of reference regarding the industrial
dispute of the concerned workmen is vitiated in
law, as the same is void ab initio in law and
therefore, quashing of the said refusal order by
the High Court is perfectly justified.
29. The appellant-Company has also contended that
the respondent-Union has also raised the legal
question regarding the competency of the Deputy
Labour Commissioner in passing the order of
reference for the first time before this Court and
the same was not raised before the High Court,
therefore, the same shall not be permitted to be
raised in these proceedings and this Court need
not go into this aspect of the matter which is
wholly untenable in law. This contention raised by
the learned senior counsel for the appellant is
rejected as the said contention is contrary to the
issues/principles laid down by the Privy Council
and this Court in the following judgments:Page 35
C.A. No. 246 of 2009 35
In Connecticut Fire Insurance Co. v Kavanagh16,
Lord Watson has observed as under:
“When a question of law is raised for the
first time in a court of last resort, upon
the construction of a document, or upon
facts either admitted or proved beyond
controversy, it is not only competent but
expedient, in the interests of justice, to
entertain the plea.”
The aforementioned view of the Court of
Appeal have been relied upon by this Court in
Gurcharan Singh v Kamla Singh17. Therefore, with
regard to the above mentioned aspect regarding the
plea of the competency of the Deputy Labour
Commissioner to pass an order of refusal to make a
reference, although is being raised before this
Court for the first time, is based on admitted
facts. Hence, in accordance with the view taken by
the Court of Appeal in Connecticut Fire Insurance
Co. case (supra) and this Court in Gurcharan Singh
case (supra), the argument advanced by the first
respondent-Union deserves to be considered by this
Court. Similar view has also been taken by this
Court in the cases of VLS Finance Limited v. Union
16 (1892) A.C 473, 480 (PC)
17 (1976) 2 SCC 152Page 36
C.A. No. 246 of 2009 36
of India18 and Greater Mohali Area Development
Authority v. Manju Jain19, wherein it has been held
that pure question of law can be raised at any
stage of litigation. In National Textile
Corporation v. Naresh Kumar Jagad20, it has been
held by this Court that a new ground raising pure
legal issue for which no inquiry or proof is
required, can be raised at any stage. Further, in
the case of Port Trust v Hymanshu International21,
this Court has held thus:
“2……. The plea of limitation based on this
section is one which the court always
looks upon with disfavour and it is
unfortunate that a public authority like
the Port Trust should, in all morality and
justice, take up such a plea to defeat a
just claim of the citizen. It is high time
that governments and public authorities
adopt the practice of not relying upon
technical pleas for the purpose of
defeating legitimate claims of citizens
and do what is fair and just to the
citizens. Of course, if a government or a
public authority takes up a technical
plea, the Court has to decide it and if
the plea is well-founded, it has to be
upheld by the court, but what we feel is
that such a plea should not ordinarily be
taken up by a government or a public
authority, unless of course the claim is
18
(2013) 6 SCC 278
19 (2010) 9 SCC 157
20 (2011) 12 SCC 695
21 ( 1979) 4 SCC 176Page 37
C.A. No. 246 of 2009 37
not well-founded and by reason of delay in
filing it, the evidence for the purpose of
resisting such a claim has become
unavailable……”
30. The conclusion arrived at by the High Court
that the order of refusal to make an order of
reference of the existing industrial dispute to
the Industrial Tribunal by the Deputy Commissioner
of Labour is bad in law and it has rightly issued
the writ of mandamus to the State Government and
the Deputy Commissioner of Labour for the reason
that the employer has been litigating the matter
before the High Court for several years and the
High Court, based on the pleadings and evidence on
record, must have felt that the disputed questions
of fact pleaded by the parties warrant the
adjudication of the dispute effectively by the
Industrial Tribunal. Therefore, we do not find any
reason to set aside the order of writ of mandamus
issued by the High Court to the State Government
represented by the Deputy Labour Commissioner.
31. The reliance placed upon the various
judgments of this Court by the learned seniorPage 38
C.A. No. 246 of 2009 38
counsel for the appellant on merits of the alleged
voluntary retirement of the concerned workmen need
not be examined in these appeals by this Court, as
those judgments have no application to the fact
situation of the present case and it would be
premature to apply the said principles to the fact
situation at this stage, particularly, having
regard to the legal contentions urged by the
learned senior counsel on behalf of the
respondent-Union.
32. The learned senior counsel on behalf of the
appellant-Company has further contended that the
dispute raised by the first respondent-Union on
behalf of the concerned workmen under the
provisions of the Act and the request made by it
to refer the industrial dispute to the Industrial
Tribunal for its adjudication is barred under
Section 59 of the MRTU & PULP Act. The aforesaid
contention is wholly untenable in law for the
reason that the cause of action for the present
complaint under the provisions of the Act is with
regard to the illegal action on the part of thePage 39
C.A. No. 246 of 2009 39
appellant-Company in obtaining the alleged
voluntary retirement letters from the concerned
workmen, whereas, the proceedings under the MRTU &
PULP Act are in respect of the alleged
transactions between the appellant-Company and M/s
Wyeth Ltd. which has resulted in the transfer of
the services of the workers from M/s. Wyeth Ltd.
to the appellant-Company which cause of action in
respect of these proceedings arose on 30.8.2004.
Thus, the present dispute is with regard to the
so-called “Voluntary Retirement” of the concerned
workmen which took place on 15.4.2005 and 20th/21st
April, 2005, wherein the subject matter is whether
such “Voluntary Retirement” was obtained by undue
influence, coercion, fraud, etc. and whether the
workmen are entitled to reinstatement with full
back wages and continuity of service. Therefore,
the subject matter of the complaint under the
provisions of MRTU & PULP Act and the subject
matter of the industrial dispute raised by the
first respondent-Union under the provisions of the
Act are totally different as they arise out ofPage 40
C.A. No. 246 of 2009 40
different cause of action. Hence, the contention
urged in this regard by the learned senior counsel
on behalf of the appellant-Company must fail.
33. Hence, in our considered view the impugned
judgment and order passed by the High Court is
perfectly legal and valid and the same does not
call for interference by this Court except with
certain modification in the operative portion of
the order of the High Court, namely, with regard
to the direction given to the State Government
represented by the Deputy Labour Commissioner
which is not in accordance with the notification
referred to supra. The said direction has to be
given to the Additional Labour Commissioner (in
accordance with the Notification dated 09.08.2003)
to make an order of reference to the Industrial
Tribunal within six weeks from the date of receipt
of the copy of this order as the matter has been
pending at the reference making stage itself for
several years at the instance of the
appellant-Company and the respondent no.3 herein.
34. We therefore, issue the direction to the StatePage 41
C.A. No. 246 of 2009 41
Government represented by its delegatee, the
Additional Commissioner of Labour, to make an
order of reference to the competent Industrial
Tribunal within six weeks from the date of receipt
of the copy of this judgment. We further direct
the Industrial Tribunal to decide the case within
six months from the date of receipt of such order
of reference after affording an opportunity to
both the parties and to pass appropriate award.
35. The Industrial Tribunal shall not be
influenced by the observations made in this
judgment. The Industrial Tribunal shall examine
the case of the parties with reference to the
evidence that may be produced on record by them
and the rival legal contentions that would be
urged on behalf of the parties may be considered
at the time of adjudication of the dispute and the
same has to be adjudicated on its own merit
uninfluenced by the observations made in the
judgment.
36. These appeals are dismissed with costs of Rs.
one lakh in each appeal towards the cost of thesePage 42
C.A. No. 246 of 2009 42
proceedings, for the reason that they have caused
delay in referring the dispute to the Industrial
Tribunal for its adjudication. The same shall be
deposited before the Industrial Tribunal
immediately after the order of reference is made
to it and before the parties are called upon to
file their respective claims and the said amount
shall be paid to the concerned workmen
proportionately through the first
respondent-Union. The order dated 24.9.2007
granting stay of the impugned order shall stand
vacated.
……………………………………………………………………J.
[V.GOPALA GOWDA]
……………………………………………………………………J.
[C. NAGAPPAN]
New Delhi,
April 29, 2015
Print Page
contention of the learned senior counsel for the
appellant that the workmen are barred from raising
the industrial dispute on the ground of estoppel,
is also rejected by this Court in view of the fact
that estoppel is a principle of equity which deals
with the effect of contract and not with its
cause. It does not mean that a void or voidable
contract cannot be adjudicated by the Industrial
Tribunal/courts merely because the concerned
workmen have accepted the voluntary retirement as
pleaded by them and other benefits from the
appellant as per the case of National Insurance
Co. Ltd. (supra).
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.246 OF 2009
M/S ARIANE ORGACHEM PVT. LTD. …APPELLANT
Vs.
WYETH EMPLOYEES UNION & ORS. …RESPONDENTS
Citation;(2015) 7 SCC561
V. GOPALA GOWDA, J.
I.A.No.2 of 2015 in C.A.No.247 of 2009 for
substitution of the name of the appellant-Company
is ordered.
2. These appeals are directed against the
common impugned judgment and order dated 16.8.2007
passed by the High Court of Judicature at Bombay
in Writ Petition No.444 of 2007, whereby the High
Court quashed the order of the Deputy Commissioner
of Labour, Mumbai, dated 14.8.2006 and directed
him to refer the industrial dispute of the
concerned workmen as per their demand dated
14.11.2005, for adjudication of the matter to the
Industrial Tribunal under Section 10(1)(d) of the
Industrial Disputes Act, 1947 (for short “the
Act”).
3. Since both the appeals are filed against the
common impugned judgment and order of the High
Court, for the sake of convenience, we would refer
to the brief facts of C.A.No.246 of 2009 which are
stated hereunder:
The appellant-Company, M/s. Ariane Orgachem
Pvt. Ltd. was established to manufacture and
market drugs which are manufactured by it. The
appellant-Company, have taken over the alleged
loss incurring pharmaceutical factory of M/s.
Wyeth Ltd. respondent No.3 herein
(appellant-Company in C.A.247 of 2009), situated
at 146, LBS Marg, Ghatkopar, Mumbai, along with
its permanent employees, pursuant to an agreement
dated 25.6.2004 and the sale deed dated 30.6.2004.
The letters were issued to the workmen by the
appellant in this regard, to the effect that they
would be employed under its management without any
interruption in their services.
4. On 30.08.2004, the appellant-Company acquired
the erstwhile manufacturing facility of M/s. Wyeth
Ltd.-respondent No.3 and on 31.8.2004, the
respondent No.3 issued letters to its workmen
working in its erstwhile factory, informing them
about the sale and transfer of the ownership and
management of the said factory to the
appellant-Company in accordance with the provision
of Section 25-FF of the Act. They were further
informed that their services will not be
interrupted due to such transfer and their
services will be treated as continuous and
uninterrupted for the purpose of retiral/terminal
benefits. Thereafter, all the workmen whose
employment came to be transferred from M/s Wyeth
Ltd. to the appellant-Company started drawing
their wages/salary and all other benefits like
advance, LTA and leave, etc. from the appellant.
5. On 2.9.2004, the respondent no.1-Wyeth
Employees Union (for short “the Union”), which is
the recognized Union under the Provisions of thePage 4
C.A. No. 246 of 2009 4
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971
(for short “the MRTU & PULP Act”), filed Complaint
(ULP) No. 534 of 2004, before the Industrial Court
challenging the sale and transfer of employment of
the employees but no interim relief was granted by
the Industrial Court, hence, all the workmen came
on the rolls of appellant-Company and started
drawing wages from it.
6. The appellant claimed that it has framed
Voluntary Retirement Scheme (for short “VRS”) on
12.4.2005 for the workmen, offering amounts, tax
free, to each workman with all other dues such as
gratuity, ex-gratia, provident fund, leave
encashment etc. which was operative from 12.4.2005
to 30.4.2005. On 15.04.2005, 45 out of the total
143 workmen applied for the said VRS and collected
the VRS payments and the remaining workmen
collected the VRS payments on 20.04.2005 and
21.04.2005. After the payment of the VRS benefits,
the workmen were relieved from their services by
the appellant-Company.Page 5
C.A. No. 246 of 2009 5
7. It is further stated by the
appellant-Company that on 26.4.2005, the first
respondent-Union through its General Secretary,
unconditionally withdrew Complaint (ULP) Nos. 534
of 2004, 714 of 2004 and 771 of 2004, confirming
to the court that all the workmen had availed the
VRS and the Union did not want to pursue the
cases.
8. After several months of accepting the VRS,
the respondent-Union raised the demand seeking
their reinstatement in the Company of respondent
no.3. In response to the said demand, the
appellant-Company replied that all the workmen had
taken the VRS benefits and they were not the
workmen of either the appellant-Company or the
third respondent’s Company anymore, therefore, no
industrial dispute could be raised by or on their
behalf by the respondent-Union. On 12.12.2005, the
respondent-Union, wrote a letter to the Assistant
Commissioner of Labour, seeking his intervention
in respect of their demand with the Company. On
01.08.2006, the Conciliation Officer sent thePage 6
C.A. No. 246 of 2009 6
failure report to the Assistant Commissioner of
Labour, subsequent to which on 14.08.2006, the
office of the Deputy Labour Commissioner which
took cognizance of the failure report declined to
make an order of reference to the Industrial
Tribunal stating thereby that there was no
industrial dispute in existence between the
parties.
9. Thereafter, the newly elected leadership of
the first respondent-Union under the
representation of its new General Secretary
aggrieved by the order of refusal to make an order
of reference to the Industrial Tribunal by the
Deputy Commissioner of Labour filed Writ Petition
No. 444 of 2007 before the High Court urging
various legal grounds and questioning the
correctness of the same.
10. The High Court in exercise of its power
quashed the order dated 14.8.2006 passed by Deputy
Commissioner of Labour, Mumbai, who has refused to
make an order of reference to the Industrial
Tribunal for its adjudication of the industrialPage 7
C.A. No. 246 of 2009 7
dispute between the parties. The High Court has
held that the acceptance of the benefits by the
concerned workmen from the appellant may not
establish the fact that no force or compulsion was
exercised by the appellant and this is the most
contentious and disputed question of fact which
could not have been decided by the State
Government in exercise of its administrative
power. The High Court has held that the subjective
satisfaction of the subject matter of an
industrial dispute between the parties by the
State Government is therefore, vitiated in law and
making an order of reference in respect of the
concerned workmen is absolutely essential in this
regard. Thus, the High Court by issuing a writ of
mandamus, directed the Deputy Labour Commissioner
to make an order of reference to the Industrial
Tribunal with regard to the demand of industrial
dispute raised by the Union dated 14.11.2005 on
behalf of the concerned workmen, for its
adjudication under Section 10(1)(d) of the Act.
Aggrieved by the impugned judgment of the HighPage 8
C.A. No. 246 of 2009 8
Court, these appeals have been filed by the
appellant-Companies, praying this Court to set
aside the same contending that the High Court has
exceeded its jurisdiction in passing the impugned
judgment and order.
11. It is urged by Mr. C.U. Singh, the learned
senior counsel on behalf of the appellant-Company
that the VRS benefits were accepted by the
concerned workmen between 15.4.2005 to 25.4.2005
and the cheques which were issued to them towards
their voluntary retirement benefits were encashed
by them. Therefore, raising the industrial dispute
by the concerned workmen after lapse of 7 months,
from the date of acceptance of the VRS benefits,
is wholly untenable in law. It has been further
contended by him that many concerned workmen have
cleared their bank loans such as housing loans,
Co-operative Society/Co-operative bank loans and
the appellant-Company has received intimations
from the Banks/Societies to stop deducting and
remitting loan instalments from their salaries.
12. It has been further contended by him that thePage 9
C.A. No. 246 of 2009 9
former Joint Secretary of the respondent
no.1-Union had withdrawn the Complaint (ULP) Nos.
534 of 2004 and 714 of 2004 and Complaint (ULP)
No.771 of 2004, after stepping into the witness
box and confirming to the Court that all the
workmen had availed the VRS benefits and the first
respondent-Union did not wish to pursue the cases.
Therefore, the demand raised by the first
respondent-Union on behalf of the concerned
workmen through its General Secretary contending
that they have not availed the VRS benefits under
the scheme is only an afterthought and the same
does not amount to an industrial dispute and
therefore, there is no dispute for the Industrial
Tribunal to adjudicate. The Deputy Labour
Commissioner has rightly arrived at the conclusion
on the basis of the facts on hand and declined to
make an order of reference to the Industrial
Tribunal for adjudication of the same. This
important aspect of the case has not been taken
into consideration by the High Court while
quashing the order of refusal to make an order ofPage 10
C.A. No. 246 of 2009 10
reference to the Industrial Tribunal and it has
erroneously issued a writ of mandamus to the
Deputy Commissioner of Labour against the
appellant by directing him to make an order of
reference of the industrial dispute on the demands
raised by first respondent-Union on behalf of the
concerned workmen.
13. It is further contended by the learned senior
counsel on behalf of the appellant that the first
respondent-Union has not made any allegation
against the appellant, regarding the alleged
coercion and fraud played by the appellant in
obtaining the voluntary retirement letters, either
in the demands submitted to the appellant or
before the Conciliation Officer. Therefore,
raising the said contention by the first
respondent-Union for the first time before this
Court, without it being first raised before the
Industrial Tribunal and the Conciliation Officer
is not permissible in law as held by this Court in
the case of Bishundeo Narain & Anr. v. Seogeni Rai
& Anr.1 Further, it is contended that in view of
1
(1951) SCR 548Page 11
C.A. No. 246 of 2009 11
Section 59 of the MRTU and PULP Act, there is an
express bar on the first respondent to raise an
industrial dispute against the appellant-Company.
This legal aspect of the case has been considered
by this Court in the cases of M/s. Mahabir Jute
Mills Ltd., Gorakhpur v. Shri Shibban Lal Saxena &
Ors.2 and Govind Sugar Mills Ltd. & Anr. v. Hind
Mazdoor Sabha & Ors.3 Further, the said allegations
made by the first respondent-Union with regard to
the alleged coercion upon the concerned workmen by
the appellant is not factually correct and the
same cannot be considered by this Court as it is a
frivolous and incorrect statement of fact made on
behalf of the first respondent-Union with a view
to raise frivolous industrial dispute against the
appellant-Company and the respondent No.3.
14. The learned senior counsel has further placed
reliance upon the following decisions of this
Court in Bank of India & Ors. v. O.P. Swarnakar &
Ors.4, A.K. Bindal & Anr. v. Union of India &
Ors.5, Punjab National Bank v. Virender Kumar Goel
2
(1975) 2 SCC 818
3
(1976) 1 SCC 60
4
(2003) 2 SCC 721
5
(2003) 5 SCC 163Page 12
C.A. No. 246 of 2009 12
& Ors.6, Punjab & Sind Bank & Anr. v. S. Ranveer
Singh Bawa & Anr.7 and Bank of India & Ors. v. K.V.
Vivek Ayer & Anr.8 in support of the proposition of
law that once the VRS is obtained and accepted by
the concerned workmen along with all other
monetary benefits, the same would amount to
availing benefits of the scheme and no claim can
be made by the concerned workmen against the
employer for its reconsideration and no order of
reference can be made for the industrial dispute
by the appropriate government as the same does not
exist for adjudication. Therefore, the principle
of estoppel is applicable on the concerned workmen
to raise an industrial dispute against the
appellant-Company and the respondent No.3 herein
on the subject matter of voluntary retirement, for
the reason that once they have accepted the
voluntary retirement from their services and
withdrawn all the monetary benefits which were
paid to them by the appellant, they cannot raise
the industrial dispute in this regard as the same
6
(2004) 2 SCC 193
7
(2004) 4 SCC 484
8
(2006) 9 SCC 177Page 13
C.A. No. 246 of 2009 13
is not permissible in law. He has further placed
reliance upon the judgments of this Court in the
cases of Gyanendra Sahay v. Tata Iron & Steel Co.
Ltd.9 and Vice-Chairman & Managing Director,
A.P.S.I.D.C. Ltd. & Anr. v. R. Varaprasad & Ors.10,
wherein the aforesaid principles of law have been
reiterated by this Court.
15. Further, it has been contended by him that
the scope of judicial review power of the High
Court to examine the order passed by the State
Government in exercise of its administrative power
in the writ petition is very limited as has been
held by this Court in the cases of Secretary,
Indian Tea Association v. Ajit Kumar Barat & Ors.11
and ANZ Grindlays Bank Ltd. v. Union of India &
Ors.12 Therefore, the learned senior counsel has
submitted that the impugned judgment and order is
required to be interfered with by this Court in
exercise of its jurisdiction as the exercise of
judicial review power by the High Court is bad in
law which cannot be allowed to sustain.
9
(2006) 5 SCC 759
10 (2003) 11 SCC 572
11 (2000) 3 SCC 93
12 (2005) 12 SCC 738Page 14
C.A. No. 246 of 2009 14
16. On the other hand, Mr. Sanjay Singhvi, the
learned senior counsel on behalf of the first
respondent-Union has sought to justify the
impugned judgment and order passed by the High
Court contending that the Deputy Labour
Commissioner acting as a delegatee of the State
Government has erroneously refused to make an
order of reference to the Industrial Tribunal on
the demands raised by the workmen and he has
committed a grave error in law and therefore, the
High Court has rightly exercised its extraordinary
and supervisory jurisdiction and quashed the same
by issuing a writ of mandamus. The learned senior
counsel has further contended that the Deputy
Commissioner of Labour in fact and in law is not a
delegatee of the State Government and therefore,
he could not have legally made an order of refusal
to make an order of reference of the industrial
dispute to the Industrial Tribunal for its
adjudication. It has been further contended by him
that the signatures of the concerned workmen were
obtained on blank papers and there was no VRSPage 15
C.A. No. 246 of 2009 15
scheme introduced by the appellant. Hence, the
question of seeking voluntary retirement from
their services does not arise. Further, the
respondent No.3-M/s. Wyeth Ltd., the Company in
which the concerned workmen were working initially
had intimated the stock exchange about the
stoppage of its manufacturing operations at the
Company’s plant at LBS Marg, Ghatkopar, Mumbai.
Therefore, it is clear that the said Company
wanted to discontinue and close down the factory
and terminate the services of the concerned
workmen from their services. However, being a
profitable Company, with profit making operations,
the Company has resorted to achieve its end
through a subterfuge by obtaining the signatures
of the concerned workmen on the blank papers by
using undue influence, coercion etc. in order to
circumvent the provisions of Section 25(O) of the
Act. Therefore, the alleged voluntary retirement
of the concerned workmen, is a disputed question
of fact, as the workmen are contending that they
have not voluntarily submitted any application forPage 16
C.A. No. 246 of 2009 16
voluntary retirement from their services to the
appellant-Company which fact is seriously disputed
by the appellant and therefore, the same is
required to be adjudicated by the competent
Industrial Tribunal and not referring the said
dispute between the parties by the State
Government to it is an arbitrary and unjustified
exercise of power which is not within the
jurisdiction of the State Government, in exercise
of its administrative power under the provisions
of Section 10(1)(d) read with the Third Schedule
of the Act. For the above reason itself, the High
Court is justified in quashing the impugned order
in the writ petition by passing the impugned
judgment and order which does not warrant
interference by this Court in exercise of its
appellate jurisdiction in these appeals.
17. It has been further contended by the learned
senior counsel for the first respondent-Union that
the appellant-Company is owned and controlled by
the Runwal group, which is a builder/developer and
it has entered into a sham arrangement with M/sPage 17
C.A. No. 246 of 2009 17
Wyeth Ltd. on 30.8.2004 purporting it to be an
alleged transfer of the ownership of its
undertaking in favour of the appellant. However,
it is a transfer of the assets of the Company only
without the transfer of the business of the
appellant in the connected appeal (respondent no.3
herein) and the same cannot be said to be a
genuine transfer of undertaking of M/s Wyeth Ltd.
in accordance with law and in terms of Section 25
FF of the Act. The said action of
appellant-Company and the respondent no.3 herein
is in violation of the provisions of Section 25(O)
of the Act.
18. Thus, it is urged by the learned senior
counsel that in view of the aforesaid reasons the
question of the alleged transfer of the workmen
from M/s. Wyeth Ltd. to the appellant-Company is
only a ruse and was done only with a view to
acquire the property for real estate development.
Therefore, the factual contentious issue of the
alleged voluntary retirement of the concerned
workmen and the acceptance of the monetaryPage 18
C.A. No. 246 of 2009 18
benefits by them need to be adjudicated by the
competent Industrial Tribunal under an order of
reference of the industrial dispute which has to
be referred by the State Government. This aspect
of the matter has not been considered by the State
Government at the time of passing an order
declining to exercise its administrative power to
make an order of reference to the Industrial
Tribunal for its adjudication of the existing
industrial dispute between the workmen and the
employer effectively.
19. Further, it has been contended by the learned
senior counsel that the alleged VRS benefits said
to have been given to the concerned workmen is a
false plea pleaded by the appellant-Company before
the Conciliation Officer to justify their illegal
action and the same requires scrutiny by the
Industrial Tribunal on the basis of the evidence
that has to be adduced by the parties. The
findings of fact need to be recorded by it after
adjudication of the dispute that is required to be
referred to it by the State Government in exercisePage 19
C.A. No. 246 of 2009 19
of its administrative power under the provisions
of the Act.
20. It has been further contended by the learned
senior counsel on behalf of the first respondent
that after the resignation of the earlier General
Secretary of the first respondent-Union was
accepted, a new Committee of the respondent-Union
was elected. Thereafter, it decided to take up the
issue of illegal termination of services of the
concerned workmen by the appellant-Company.
Further, the Deputy Labour Commissioner, who has
acted as the delegatee of the State Government,
has not looked into the fact that it took about 2
to 3 months for the new Committee of the first
respondent-Union to take over the affairs of the
Union which was running under the guidance of its
former General Secretary and to act in the matter
of the forced termination of the concerned workmen
from their services. The petition submitted to the
Conciliation Officer by the respondent-Union
specifically pleads that “neither any voluntary
scheme was ever framed nor published by thePage 20
C.A. No. 246 of 2009 20
appellant” and the concerned workmen have not
retired from their services voluntarily. This
aspect of the matter has not been taken into
consideration by the Conciliation Officer as well
as the appropriate State Government at the time of
passing the order refusing to make an order of
reference to the Industrial Tribunal for
adjudication of the industrial dispute. The State
Government has also not noticed the relevant fact
that the former General Secretary, without the
proper authorisation from either the first
respondent-Union or the concerned workmen,
withdrew the earlier complaints referred to supra,
filed on behalf of the concerned workmen. Further,
the State Government has failed to consider the
fact that the appellant-Company has stated about
the VRS being published for the concerned workmen
for the first time, only before it and not before
the Conciliation Officer in the earlier
proceedings. Further, due to coercion and fear,
the workmen were compelled to sign on the blank
papers and the purported voluntary retirementPage 21
C.A. No. 246 of 2009 21
letters alleged to have been submitted to the
appellant were not considered by it. The first
respondent-Union called upon the appellant-Company
to produce the Resolution passed by its Board
before the Conciliation Officer, with regard to
the alleged VRS and the order of approval said to
have been granted by the Income Tax Authority for
such scheme. The same were not produced by the
appellant before the Conciliation officer. The
State Government at the time of passing its order
ought to have considered this important factual
aspect of the matter before refusing to pass an
order to make a reference to the Industrial
Tribunal regarding the dispute between the parties
in relation to their illegal termination. For this
reason also, the High Court is justified in
quashing the order of refusal to make an order of
reference and therefore, it is rightly justified
in issuing a writ of mandamus to the State
Government to make an order of reference to the
jurisdictional Industrial Tribunal for
adjudication of the industrial dispute between thePage 22
C.A. No. 246 of 2009 22
parties.
21. The learned senior counsel has further urged
that the failure report of the dispute was
addressed to the Additional Commissioner by the
Conciliation Officer on 1.8.2006, but the Deputy
Commissioner of Labour called for the file from
the Conciliation Officer and declined to exercise
his power under Section 10(1)(d) read with the
Third Schedule of the Act, without adverting to a
single contention urged on behalf of the workmen
in the petition submitted before the Conciliation
Officer by the first respondent-Union. The
non-consideration of the claim made by the
respondent-Union on behalf of the concerned
workmen by the Deputy Commissioner of Labour at
the time of refusing to pass an order of
reference, not only vitiates the impugned order in
the writ petition on account of non application of
mind by the alleged delegatee of the State
Government but also vitiated in law for the reason
that the Deputy Commissioner of Labour is not the
competent officer to make an order of reference toPage 23
C.A. No. 246 of 2009 23
the Industrial Tribunal or to refuse to make an
order of reference to the Industrial Tribunal. The
Additional Commissioner of Labour is the only
competent authority who is the delegatee of the
State Government as per the notification dated
9.8.2003 issued by the Ministry of Labour,
Government of Maharashtra and therefore, he alone
could have passed an order of reference under
Section 10(1)(d) of the Act. Thus, the order of
refusal to make an order of reference of the
existing industrial dispute between the parties to
the Industrial Tribunal is void ab initio in law
as the same has not been exercised by competent
officer as the delegatee of the State Government.
On this ground itself the impugned judgment and
order of the High Court is justified in quashing
the order of refusal to make an order of reference
regarding the industrial dispute to the Industrial
Tribunal.
22. With reference to the above mentioned rival
legal contentions urged on behalf of the parties,
we have carefully examined the impugned judgmentPage 24
C.A. No. 246 of 2009 24
and order, with a view to find out whether the
High Court is justified in quashing the order of
refusal to make an order of reference regarding
the industrial dispute raised by the first
respondent-Union on behalf of the concerned
workmen to the Industrial Tribunal for its
adjudication. We answer the same in the
affirmative in favour of the first
respondent-Union for the following reasons:-
It is an undisputed fact that the concerned
workmen are the employees of M/s Wyeth Ltd. who is
the respondent no.3 herein and the appellant in
the connected appeal. The contention urged by the
learned senior counsel on behalf of the
respondent-Union is that the alleged transfer of
the undertaking of M/s Wyeth Ltd. in favour of the
appellant-Company is not a genuine transfer and it
is a sham one, as it is a transfer of the assets
of the Company only not the transfer of business
of M/s Wyeth Ltd. Therefore, the same is not in
conformity with the provisions of Section 25FF of
the Act. This aspect of the matter requires
adjudication by the Industrial Tribunal in orderPage 25
C.A. No. 246 of 2009 25
to find out the correctness of the plea, whether
the transfer of the undertaking M/s Wyeth Ltd. in
favour of the appellant is genuine or not and
whether the concerned workmen have accepted the
retiral benefits and other monetary claims
voluntarily, as pleaded by the appellant. This
complicated question of fact and law could not
have been decided by the alleged delegatee of the
State Government in exercise of its administrative
power, as he is not the competent authority on
behalf of the State Government to make an order of
reference to the Industrial Tribunal. The
conclusion arrived at by the High Court is
supplemented with the reasons arrived at by this
Court. Therefore, quashing of the order of refusal
to make an order of reference by the High Court is
perfectly legal and valid which need not be
interfered with by this Court in exercise of its
jurisdiction.
23. The other important factual aspect of the case
is whether the voluntary retirement of the
concerned workmen was forced or not is required toPage 26
C.A. No. 246 of 2009 26
be produced by the parties before the Industrial
Tribunal for its detailed examination and
scrutiny. The fact that certain documents were
sought to be summoned at the instance of first
respondent-Union during the conciliation
proceedings from the appellant-Company by the
Conciliation Officer which were not produced by it
is one more important factor which is required to
be considered by the Industrial Tribunal under
Section 10(1)(d) read with the Third Schedule of
the Act in exercise of its original jurisdiction
to resolve the disputed questions of fact.
Further, the VRS produced on record by the
Management gives it the discretion to arbitrarily
fix the compensation varying from Rs.50,000/- to
Rs.7,11,000/-, which if proved, would be
considered as arbitrary and there would be a grave
miscarriage of justice to the concerned workmen.
This aspect of the matter has been ignored by the
Deputy Labour Commissioner, who has erroneously
refused to make an order of reference to the
Industrial Tribunal for its adjudication of thePage 27
C.A. No. 246 of 2009 27
existing industrial dispute.
24. Further, there are serious allegations made
against the appellant-Company by the workmen
regarding the alleged coercion, undue influence
and force used on them for obtaining their
signatures on blank papers, which needs to be
examined very carefully by the Industrial Tribunal
after recording evidence from both the parties.
Prima facie, the absence of documentary evidence
produced by the appellant-Company to show that the
VRS was framed by it and converting the signatures
of the concerned workmen obtained on the blank
papers amounts to forced termination of the
services of the concerned workmen which is a
disputed question of fact which requires
adjudication by the competent Industrial Tribunal
and therefore, the demand regarding the alleged
termination of the concerned workmen is required
to be referred to the Industrial Tribunal by the
State Government. The non consideration of this
aspect of the matter in the order dated 14.08.2006
passed by the Deputy Labour CommissionerPage 28
C.A. No. 246 of 2009 28
highlighting only the factual aspect pleaded by
the appellant-Company unilaterally and not
referring to the facts pleaded on behalf of the
concerned workmen by the first respondent-Union is
once again totally marred by non application of
mind on the part of the Deputy Commissioner of
Labour, apart from the fact that the Deputy Labour
Commissioner has no competency to exercise his
power under the provisions of Section 10(1)(d) of
the Act, either to make reference or to refuse to
make reference to the Industrial Tribunal. On the
above grounds also, the impugned judgment and
order of the High Court is not required to be
interfered with by this Court in these appeals.
Reliance has been placed upon the decision of this
Court by the learned senior counsel on behalf of
the first respondent-Union in the case of National
Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.13,
wherein this Court has held thus:
“26. When we refer to a discharge of
contract by an agreement signed by both
parties or by execution of a full and
final discharge voucher/receipt by one of
the parties, we refer to an agreement or
discharge voucher which is validly and
13 (2009) 1 SCC 267Page 29
C.A. No. 246 of 2009 29
voluntarily executed. If the party who has
executed the discharge agreement or
discharge voucher, alleges that the
execution of such discharge agreement or
voucher was on account of
fraud/coercion/undue influence practiced
by the other party and is able to
establish the same, then obviously the
discharge of the contract by such
agreement/voucher is rendered void and
cannot be acted upon. Consequently, any
dispute raised by such party would be
arbitrable.”
25. Further, the failure report of the
conciliation proceedings is not the sufficient
material evidence to arrive at the conclusion by
the State Government to decline to exercise its
statutory power under the provisions of Section
10(1)(d) read with the Third Schedule of the Act
either to make/or not to make an order of
reference. The refusal to make an order of
reference by the State Government’s delegatee
amounts to determination of the existing dispute
between the parties by the State Government in the
absence of relevant and material evidence on
record which ought not to have been done by him
while exercising his power under Section 10(1)(d)
of the Act. In this regard, the High Court hasPage 30
C.A. No. 246 of 2009 30
rightly placed reliance upon the case of Ram Avtar
Sharma & Ors. v. State of Haryana & Anr.14, the
relevant para of which reads thus:
“11. The appropriate Government being the
Central Government in this case declined
to make a reference as per its order dated
December 9, 1983 in which it is stated
that 'the action of the management in
imposing on the workmen penalty of removal
from service on the basis of an enquiry
and in accordance with the procedure laid
down in the Railway Servants (Discipline &
Appeal) Rules. 1968 is neither malafide
nor unjustified. The appropriate
Government does not consider it necessary
to refer the dispute to the Industrial
Tribunal for adjudication.' Ex facie it
would appear that the Government acted on
extraneous and irrelevant considerations
and the reasons hereinbefore mentioned
will mutatis mutandis apply m respect of
present order of the Government under
challenge. Therefore for the same reasons,
a writ of mandamus must be issued.
12. Accordingly all the writ petitions are
allowed and the rule is made absolute in
each case. Let a writ of mandamus be
issued directing the appropriate
Government in each case namely the State
of Haryana in the first mentioned group of
petitions and the Central Government in
the second petition to reconsider its
decision and to exercise power under
Section 10 on relevant and considerations
germane to the decision. In other words, a
clear case of reference under
Section 10(1) in each case is made out.”
26. Further, the High Court has rightly adverted
14 (1985) 3 SCC 189Page 31
C.A. No. 246 of 2009 31
to various judgments of this Court including
Bombay Union of Jornalists v. State of Bombay
AIR 1964 SC 1617
wherein it was held thus:
”6. ………it would not be possible to accept
the plea that the appropriate Government
is precluded from considering even prima
facie the merits of the dispute when it
decides the question as to whether its
power to make a reference should be
exercised under Section 10(l)read with
Section 12(5), or not. If the claim made
is patently frivolous, or is clearly
belated the appropriate Government may
refuse to make a reference. Likewise, if
the impact of the claim on the general
relations between the employer and the
employees in the region is likely to be
adverse, the appropriate Government may
take that into account in deciding whether
a reference should be made or not. It
must, therefore, be held that and prima
facie examination of the merits cannot be
said to be foreign to the enquiry which
the appropriate Government is entitled to
make in dealing with a dispute under
Section 10(1)……”
Therefore, in the present case, the dispute raised
by the respondent-Union on behalf of the concerned
workmen is neither patently frivolous nor is it a
belated claim of the concerned workmen. The
contention of the learned senior counsel for the
appellant that the workmen are barred from raising
the industrial dispute on the ground of estoppel,
is also rejected by this Court in view of the fact
that estoppel is a principle of equity which deals
with the effect of contract and not with its
cause. It does not mean that a void or voidable
contract cannot be adjudicated by the Industrial
Tribunal/courts merely because the concerned
workmen have accepted the voluntary retirement as
pleaded by them and other benefits from the
appellant as per the case of National Insurance
Co. Ltd. (supra).
27. Having regard to the facts and circumstances
of the case and the contentions urged on behalf of
the learned counsel for the parties, we have come
to the conclusion that these are the disputed
questions of fact in this case, which requires
determination on the basis of evidence by the
Industrial Tribunal and therefore, a valid
reference has to be made to it by the State
Government. The various decisions relied upon by
the learned senior counsel Mr. C.U. Singh on
behalf of the appellant referred to supra arePage 33
C.A. No. 246 of 2009 33
misplaced and have no application to the fact
situation of the present case.
28. Further, the High Court has not considered
another important aspect of the case, namely, that
the Deputy Commissioner of Labour is not entrusted
with the power under Section 10(1) (d) of the Act
as the delegatee of the State Government as per
the new Notification dated 09.08.2003, issued by
the Industries, Energy and Labour Department,
Mantralaya, Mumbai in exercise of its power
conferred under Section 39(b) of the Act which is
produced on record. As per the said notification,
the State of Maharashtra has conferred its power
upon the Labour Commissioner and the Additional
Labour Commissioner to exercise its power under
Section 10(1),(2) & (3) and other provisions of
the Act. There is no other notification produced
by the employer either before the High Court or
this Court to show that the Deputy Labour
Commissioner has got power as the delegatee of the
State Government to make an order of reference
under the provisions of Section 10(1)(d) read withPage 34
C.A. No. 246 of 2009 34
the Third Schedule of the Act to the Industrial
Tribunal. On this ground also, the order of the
Deputy Labour Commissioner, refusing to make an
order of reference regarding the industrial
dispute of the concerned workmen is vitiated in
law, as the same is void ab initio in law and
therefore, quashing of the said refusal order by
the High Court is perfectly justified.
29. The appellant-Company has also contended that
the respondent-Union has also raised the legal
question regarding the competency of the Deputy
Labour Commissioner in passing the order of
reference for the first time before this Court and
the same was not raised before the High Court,
therefore, the same shall not be permitted to be
raised in these proceedings and this Court need
not go into this aspect of the matter which is
wholly untenable in law. This contention raised by
the learned senior counsel for the appellant is
rejected as the said contention is contrary to the
issues/principles laid down by the Privy Council
and this Court in the following judgments:Page 35
C.A. No. 246 of 2009 35
In Connecticut Fire Insurance Co. v Kavanagh16,
Lord Watson has observed as under:
“When a question of law is raised for the
first time in a court of last resort, upon
the construction of a document, or upon
facts either admitted or proved beyond
controversy, it is not only competent but
expedient, in the interests of justice, to
entertain the plea.”
The aforementioned view of the Court of
Appeal have been relied upon by this Court in
Gurcharan Singh v Kamla Singh17. Therefore, with
regard to the above mentioned aspect regarding the
plea of the competency of the Deputy Labour
Commissioner to pass an order of refusal to make a
reference, although is being raised before this
Court for the first time, is based on admitted
facts. Hence, in accordance with the view taken by
the Court of Appeal in Connecticut Fire Insurance
Co. case (supra) and this Court in Gurcharan Singh
case (supra), the argument advanced by the first
respondent-Union deserves to be considered by this
Court. Similar view has also been taken by this
Court in the cases of VLS Finance Limited v. Union
16 (1892) A.C 473, 480 (PC)
17 (1976) 2 SCC 152Page 36
C.A. No. 246 of 2009 36
of India18 and Greater Mohali Area Development
Authority v. Manju Jain19, wherein it has been held
that pure question of law can be raised at any
stage of litigation. In National Textile
Corporation v. Naresh Kumar Jagad20, it has been
held by this Court that a new ground raising pure
legal issue for which no inquiry or proof is
required, can be raised at any stage. Further, in
the case of Port Trust v Hymanshu International21,
this Court has held thus:
“2……. The plea of limitation based on this
section is one which the court always
looks upon with disfavour and it is
unfortunate that a public authority like
the Port Trust should, in all morality and
justice, take up such a plea to defeat a
just claim of the citizen. It is high time
that governments and public authorities
adopt the practice of not relying upon
technical pleas for the purpose of
defeating legitimate claims of citizens
and do what is fair and just to the
citizens. Of course, if a government or a
public authority takes up a technical
plea, the Court has to decide it and if
the plea is well-founded, it has to be
upheld by the court, but what we feel is
that such a plea should not ordinarily be
taken up by a government or a public
authority, unless of course the claim is
18
(2013) 6 SCC 278
19 (2010) 9 SCC 157
20 (2011) 12 SCC 695
21 ( 1979) 4 SCC 176Page 37
C.A. No. 246 of 2009 37
not well-founded and by reason of delay in
filing it, the evidence for the purpose of
resisting such a claim has become
unavailable……”
30. The conclusion arrived at by the High Court
that the order of refusal to make an order of
reference of the existing industrial dispute to
the Industrial Tribunal by the Deputy Commissioner
of Labour is bad in law and it has rightly issued
the writ of mandamus to the State Government and
the Deputy Commissioner of Labour for the reason
that the employer has been litigating the matter
before the High Court for several years and the
High Court, based on the pleadings and evidence on
record, must have felt that the disputed questions
of fact pleaded by the parties warrant the
adjudication of the dispute effectively by the
Industrial Tribunal. Therefore, we do not find any
reason to set aside the order of writ of mandamus
issued by the High Court to the State Government
represented by the Deputy Labour Commissioner.
31. The reliance placed upon the various
judgments of this Court by the learned seniorPage 38
C.A. No. 246 of 2009 38
counsel for the appellant on merits of the alleged
voluntary retirement of the concerned workmen need
not be examined in these appeals by this Court, as
those judgments have no application to the fact
situation of the present case and it would be
premature to apply the said principles to the fact
situation at this stage, particularly, having
regard to the legal contentions urged by the
learned senior counsel on behalf of the
respondent-Union.
32. The learned senior counsel on behalf of the
appellant-Company has further contended that the
dispute raised by the first respondent-Union on
behalf of the concerned workmen under the
provisions of the Act and the request made by it
to refer the industrial dispute to the Industrial
Tribunal for its adjudication is barred under
Section 59 of the MRTU & PULP Act. The aforesaid
contention is wholly untenable in law for the
reason that the cause of action for the present
complaint under the provisions of the Act is with
regard to the illegal action on the part of thePage 39
C.A. No. 246 of 2009 39
appellant-Company in obtaining the alleged
voluntary retirement letters from the concerned
workmen, whereas, the proceedings under the MRTU &
PULP Act are in respect of the alleged
transactions between the appellant-Company and M/s
Wyeth Ltd. which has resulted in the transfer of
the services of the workers from M/s. Wyeth Ltd.
to the appellant-Company which cause of action in
respect of these proceedings arose on 30.8.2004.
Thus, the present dispute is with regard to the
so-called “Voluntary Retirement” of the concerned
workmen which took place on 15.4.2005 and 20th/21st
April, 2005, wherein the subject matter is whether
such “Voluntary Retirement” was obtained by undue
influence, coercion, fraud, etc. and whether the
workmen are entitled to reinstatement with full
back wages and continuity of service. Therefore,
the subject matter of the complaint under the
provisions of MRTU & PULP Act and the subject
matter of the industrial dispute raised by the
first respondent-Union under the provisions of the
Act are totally different as they arise out ofPage 40
C.A. No. 246 of 2009 40
different cause of action. Hence, the contention
urged in this regard by the learned senior counsel
on behalf of the appellant-Company must fail.
33. Hence, in our considered view the impugned
judgment and order passed by the High Court is
perfectly legal and valid and the same does not
call for interference by this Court except with
certain modification in the operative portion of
the order of the High Court, namely, with regard
to the direction given to the State Government
represented by the Deputy Labour Commissioner
which is not in accordance with the notification
referred to supra. The said direction has to be
given to the Additional Labour Commissioner (in
accordance with the Notification dated 09.08.2003)
to make an order of reference to the Industrial
Tribunal within six weeks from the date of receipt
of the copy of this order as the matter has been
pending at the reference making stage itself for
several years at the instance of the
appellant-Company and the respondent no.3 herein.
34. We therefore, issue the direction to the StatePage 41
C.A. No. 246 of 2009 41
Government represented by its delegatee, the
Additional Commissioner of Labour, to make an
order of reference to the competent Industrial
Tribunal within six weeks from the date of receipt
of the copy of this judgment. We further direct
the Industrial Tribunal to decide the case within
six months from the date of receipt of such order
of reference after affording an opportunity to
both the parties and to pass appropriate award.
35. The Industrial Tribunal shall not be
influenced by the observations made in this
judgment. The Industrial Tribunal shall examine
the case of the parties with reference to the
evidence that may be produced on record by them
and the rival legal contentions that would be
urged on behalf of the parties may be considered
at the time of adjudication of the dispute and the
same has to be adjudicated on its own merit
uninfluenced by the observations made in the
judgment.
36. These appeals are dismissed with costs of Rs.
one lakh in each appeal towards the cost of thesePage 42
C.A. No. 246 of 2009 42
proceedings, for the reason that they have caused
delay in referring the dispute to the Industrial
Tribunal for its adjudication. The same shall be
deposited before the Industrial Tribunal
immediately after the order of reference is made
to it and before the parties are called upon to
file their respective claims and the said amount
shall be paid to the concerned workmen
proportionately through the first
respondent-Union. The order dated 24.9.2007
granting stay of the impugned order shall stand
vacated.
……………………………………………………………………J.
[V.GOPALA GOWDA]
……………………………………………………………………J.
[C. NAGAPPAN]
New Delhi,
April 29, 2015
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