Company : Sol Infotech Pvt. Ltd.

Website : www.courtkutchehry.com
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Date : 09/05/2023

(2017) 02 BOM CK 0119

In the bombay high court (aurangabad bench)
Case No : Writ Petition No. 1026 Of 2017

Motiram APPELLANT
Vs
The State of Maharashtra RESPONDENT

Date of Decision : 08-02-2017

Acts Referred:
Constitution of India, 1950 — Article 226
Industrial Disputes (Bombay) Rules, 1957 — Rule 62(4)
Industrial Disputes Act, 1947 — Section 18(1),Section 2(p),Section 25
Citation : (2017) 2 CLR 319 : (2017) LabLR 423 : (2017) 1 LLJ 759 : (2017) 3 MhLJ
853
Hon'ble Judges : Ravindra V. Ghuge, J.
Bench : Single Bench
Advocate : Shri Shejwal Arun S., , For The Petitioner, Shri Kendre S.N., , No. 1, 2,
Shri Prabhakaran T.K., , No. 3
Final Decision : Dismissed

Judgement
Ravindra V. Ghuge, J. (Oral) - Heard learned Advocates for the respective
parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is taken up for
final disposal.
4. The petitioners are aggrieved by the order dated 22.8.2016 passed by the
respondent No.2 / Authority, whereby, the Conciliation Officer has not referred the
demands put-forth by the petitioners to the Industrial Tribunal for adjudication.
5. The learned Advocate for the petitioners has strenuously criticized the impugned
order. His submissions can be summarized as follows:-
(a) Respondent No.3 is a Company having a manufacturing Unit at W-28, MIDC,
Waluj, Aurangabad.
(b) There were 22 workers, who were permanent in the said plant.
(c) These 18 petitioners are amongst the said 22 workers.
(d) The petitioners have been working for more than 20 years.
(e) On 28.12.2013, respondent No.3 / establishment / factory granted three days''
holidays.
(f) By notice dated 30.12.2013, respondent No.3 factory declared a closure of the
W-28 establishment.
(g) Respondent No.3 has another factory at A-8 MIDC, Waluj, which has now been
closed down w.e.f. 1.1.2017 as per the statement of respondent No.3.
(h) The petitioners were the members of the Aurangabad Mazdoor Union (CITU).
(i) The Union took up the cause of the petitioners before the office of the Deputy
Commissioner, Labour.
(j) A settlement dated 12.8.2014, was signed under Section 2(p) read with Section
18(1) of the Industrial Disputes Act, 1947 and Rule 62(4) of Industrial Disputes
(Bombay) Rules, 1957, between the parties.
(k) The Assistant Commissioner of Labour was a witness to the cheques paid to the
petitioners / workers.
(l) The conditions of the settlement were mentioned therein.
(m) The petitioners have been tricked by respondent No.3 and since the factory at
A-8 was in operation and was undertaking production of activities which were also
undertaken in W-28, the petitioners raised a demand notice for reemployment /
reinstatement with all back wages from 30.12.2013 alleging violation of Section
25-H and 25-O.
(n) The petitioners are poverty stricken employees and are without an
employment today.
(o) They deserve to be reinstated in service with full back wages.
(p) An Industrial Dispute ought to have been submitted to the Industrial Tribunal.
(q) The Impugned order is illegal, unsustainable and baseless.
6. The learned Advocate for respondent factory submits that the said factory at W-
28 has been permanently closed down. Similarly, w.e.f. 1.1.2017, the factory at A-
8 has also been closed down. There is no manufacturing activity and no job
available to any worker, much less the petitioners. By signing the settlement,
dated 12.8.2014, pursuant to the demands of the petitioner and the Union against
the closure, 20 workers involved including the petitioners, were paid a total
amount of Rs.1,01,32,065/-. (Rs. One Crore One Lakh Thirty Two Thousand Sixty
Five only/-).
7. He further submits that after signing a settlement with regard to the closure and
after having taken all the benefits from the settlement, the petitioners have
utilized the money paid to them and thereafter have raised an industrial dispute on
9.10.2015, contending that the closure is illegal. The thrust of the petitioners''
demand is on Sections 25-O and 25-H. Nevertheless, after signing the settlement,
the petitioners are precluded from raising any industrial dispute.
8. I have considered the submissions of the learned Advocates.
9. This Court had heard the learned Advocates for quite some time on 1.2.2017
and 6.2.2017.
10. The Honourable Apex Court in the matter of Man Singh v. Maruti Suzuki
India Limited and another [(2011) 14 SCC 662], had dealt with a case
wherein the appellant had sought voluntary retirement with the respondent /
factory. He accepted all the benefits of VRS and gave up all his rights of
employment and non-employment. After accepting all the benefits as a package
under the VRS, he had moved the Labour Court alleging compulsion, duress, and
coercion. The management challenged the said dispute, which was referred to the
Labour Court in a Reference, by filing a Writ Petition before the Punjab and
Haryana High Court. Taking into account the fact that the employee had received
the entire monetary package and had then raised a grievance against the VRS, the
learned Single Judge ordered as under:-
" To make the scales even, the Labour Court will undertake the adjudication on the
reference, if only the workman deposits the amount which he has received into
Court with interest from the date when he has received to the date of deposit
calculated at 7.5% per annum. If the deposit is not made within 60 days from the
date when reference was issued to him, the reference made by the Government
shall stand annulled.
The writ petition is disposed of in the above terms."
The employee was, therefore, directed to deposit the entire VRS amount along
with 7.5.% per annum interest.
11. Before the Honourable Apex Court, the employee contended that he was
compelled to accept the money and was coerced to sign the voluntary retirement
papers. Considering his submissions, the Honourable Apex Court sustained the
direction of the learned Single Judge to the extent of depositing the entire VRS
amount. However, the imposition of interest was held to be a bit harsh and the
said direction was set aside.
12. It would be apposite to reproduce paragraphs 6 to 9 of the Man Singh judgment
(supra) as under:-
"6. In Ramesh Chandra Sankla and Ors. v. Vikram Cement and Ors. a
number of workmen of Vikram Cement Company who had ceased to be the
employees of Company after accepting full benefits under the scheme of voluntary
retirement moved the Labour Court under Section 31 of the Madhya Pradesh
Industrial Relations Act, 1960 making the same allegations against the Company
as the Appellant in this case. In that case, the Labour Court declined to decide
certain issues framed at the instance of the management as preliminary issues.
The management''s appeal against the decision of the Labour Court not to decide
those issues as preliminary issues was rejected by the Industrial Court. The writ
petition filed by the management was dismissed by a learned single Judge on the
ground that the orders passed by the Labour Court and affirmed by the Industrial
Court were interlocutory in nature. The management took the matter before the
Division Bench which held that the writ petitions filed by the Company were under
Article 227 of the Constitution and the single Judge was exercising supervisory
jurisdiction; hence, intra-court appeals were not maintainable and the appeals filed
by the Company were liable to be dismissed on that score alone. Even while
holding that the management''s appeals were liable to be dismissed as not
maintainable, the Division Bench went on to hold that since the workmen had
approached the Labour Court after having received the benefits under the scheme,
it would be equitable to direct the concerned employees to return the benefits so
received to the employer subject to the undertaking by the Company that in the
event the Labour Court allowed the claim and granted benefits to the workmen,
the same would be restored to them by the Company with interest at the rate of
6% per annum.
7. The workmen challenged the order of the Division Bench before this Court inter
alia on the ground that having held that the management''s appeals were not
maintainable, the Division Bench had No. jurisdiction to make the impugned
direction. This Court repelled the workmen''s contention and in paragraphs 100 and
101 of the decision held and observed as follows:
100. Even otherwise, according to the workmen, they were compelled to accept
the amount and they received such amount under coercion and duress. In our
considered opinion, they cannot retain the benefit if they want to prosecute claim
petitions instituted by them with the Labour Court. Hence, the order passed by the
Division Bench of the High Court as to refund of amount cannot be termed unjust,
inequitable or improper. Hence, even if it is held that a "technical" contention
raised by the workmen has some force, this Court which again exercises
discretionary and equitable jurisdiction under Article 136 of the Constitution, will
not interfere with a direction which is in consonance with the doctrine of equity. It
has been rightly said that a person "who seeks equity must do equity". Here the
workmen claim benefits as workmen of the Company, but they do not want to part
with the benefit they have received towards retirement and severance of
relationship of master and servant. It simply cannot be permitted. In our
judgment, therefore, the final direction issued by the Division Bench needs No.
interference, particularly when the Company has also approached this Court under
Article 136 of the Constitution.
101. For the foregoing reasons, in our opinion, the order passed by the Division
Bench of the High Court deserves to be confirmed and is hereby confirmed. The
payment which is required to be made as per the said order should be made by the
applicants intending to prosecute their claims before the Labour Court, Mandsour.
In view of the fact, however, that the said period is by now over, ends of justice
would be served if we extend the time so as to enable the applicants to refund the
amount. We, therefore, extend the time up to 31-12-2008 to make such payment.
We may, however, clarify that the claim petitions will not be proceeded with till
such payment is made. If the payment is not made within the period stipulated
above, the claim petitions of those applicants will automatically stand dismissed.
The Labour Court will take up the claim petitions after 31-12-2008.
The present case is squarely covered by the decision of this Court in Ramesh
Chandra Sankla (supra). We, thus, find no merit in the submission made on behalf
of the Appellant that the High Court had no jurisdiction to make a direction for
refund of the entire amount received by the Appellant as a condition precedent for
the reference to proceed."
13. Considering the law, I called upon the petitioners on 6.2.2017, when the
matter was heard, to deposit the amounts received by the petitioners on
12.8.2014, without interest in this Court. Today, when the matter is heard, the
learned Advocate for the petitioners submits on instructions that none of the
petitioners are willing to deposit any money in this Court.
14. I, therefore, considered the Writ Petition on it''s merits.
15. Petitioner No.1 was not party to the settlement dated 12.8.2014. He
challenged the closure. Pursuant thereto, a fresh settlement was signed on
18.12.2014 between petitioner No.1 and respondent No.3 under the provisions of
the Industrial Disputes Act, 1947. He received a total amount of Rs.6,62,308/- as a
full and final settlement inclusive of Rs.1,60,000/0- as ex-gratia. After the passage
of one year, he has joined petitioner Nos.2 to 18 and has raised an industrial
dispute.
16. I find from the identical settlements dated 12.8.2014 and 31.12.2014 that
these petitioners have specifically agreed to give up and relinquish all claims
against the factory and had undertaken not to raise any monetary demand /
dispute against the company at any time in future before any Court or Government
authority or department. The recital of the case in the settlements indicates that
the entire settlement was with reference to the closure of the factory from
30.12.2013. Complaint (ULP) No.170 of 2013, filed by the Union was also
withdrawn on 22.1.2014.
17. Paragraph Nos.1 to 4 of the Settlement read as under:-
" 1. All the 20 Ex-workmen who are covered under this settlement and the union
have accepted that the Factory is closed irrevocably on and from 30.12.2013 and
all the Ex-workmen have relinquished their past, present and future rights on the
employment with the Company. They further agreed that they shall not raise any
demand, dispute in relation to their employment, re-employment, future
employment, terms of employment any time in future before any Court of Law or
authority against the Company.
2. The company has agreed to pay Ex-gratia Amount of Rs. 1,60,000/- to each of
the workmen in addition to the full and final settlement dues and all the Ex-
workmen have agreed to receive the said amount being a consideration for
relinquishing all claims against the Company in their full and final satisfaction. They
further agreed that they shall not raise any monetary demand dispute against the
company any time in future before any Court of Law or the Government officials /
Authorities.
3. That all 20 Ex-workmen requested the Company that in consideration of efforts
made by Aurangabad Mazdoor Union (AMU) for reaching amicable settlement with
the company and they have requested the Company to deduct Rs. 3000/- per
workman from the additional consideration amount of Rs. 1,60,000/- towards
Union Fund and same be paid separately to the Aurangabad Mazdoor Union (AMU).
This request has been agreed by the Company.
4. The Ex-workmen requested the Company to issue fresh cheques in lieu of the
one deposited in the Industrial Court at Aurangabad which have since been
expired. The Workmen undertake to withdraw cheques from the court, which are
outdated and return the same to the company. The Company has agreed for the
same."
18. Pursuant to the above, besides receiving the full and final payments, each of
these petitioners were paid Rs.1,60,000/- as an ex-gratia amount. They
contributed Rs.3,000/- each towards the Union fund for recognizing the efforts put
in by the Union for resolving the closure issue and for fetching each of these
petitioners a higher package deal than what is provided for under Section 25(F) of
the Industrial Disputes Act, 1947.
19. The above circumstances are no different than those appearing in the case of
the Man Singh (supra). In the said case before the Honourable Apex Court, the
factory was in operational condition and the appellant therein had opted for VRS.
Yet the Honourable Apex Court concluded that having accepted the VRS and
received the money, unless the entire amount is not deposited in the Court, the
grievance cannot be entertained. In the instant case, the factory was closed down
on 30.12.2013. The settlement was signed on 12.8.2014 and 18.12.2014. The
factory at W-28 has also been permanently closed down. None of the petitioners
are willing to deposit the money in the Court.
20. The Honourable Apex Court in the matter of Ramesh Chandra Sankla Etc. v.
Vikram Cement Etc . [(2008) 14 SCC 58] , has taken a view in similar set of
facts as under:-
" In our considered opinion, taking into account facts and circumstances in their
entirety, the order passed and direction issued by the Division Bench of the High
Court was in furtherance of justice. Not only it has not resulted in miscarriage of
justice, in fact it has attempted to put status quo ante by balancing interests and
leaving the matter to be decided by a Competent Authority in accordance with law.
Even otherwise, according to the workmen, they were compelled to accept the
amount and they received such amount under coercion and duress. In our
considered opinion, they cannot retain the benefit if they want to prosecute Claim
Petitions instituted by them with the Labour Court. Hence, the order passed by the
Division Bench of the High Court as to refund of amount cannot be termed unjust,
inequitable or improper. Hence, even if it is held that a ''technical'' contention
raised by the workmen has some force, this Court which again exercises
discretionary and equitable jurisdiction under Article 136 of the Constitution, will
not interfere with a direction which is in consonance with the doctrine of equity. It
has been rightly said that a person "who seeks equity must do equity". Here the
workmen claim benefits as workmen of the Company, but they do not want to part
with the benefit they have received towards retirement and severance of
relationship of master and servant. It simply cannot be permitted. In our
judgment, therefore, the final direction issued by the Division Bench needs no
interference, particularly when the Company has also approached this Court under
Article 136 of the Constitution."
21. Considering the above, I find that the grievance of the petitioners cannot be
entertained unless and until they deposit the entire amount received by them in
the Court and which they have declined as per the instructions of the learned
Advocate for the petitioners.
22. I find that this instant case is an example of ''abuse of the process of law''.
However, since the petitioners are workmen, I am not imposing any costs on
them. This petition being devoid of merits is, therefore, dismissed.
23. Rule is discharged.