w w w . L a w y e r S e r v i c e s . i n



Mayurakshi Cotton Mills Employees Union & Another v/s The 9th Industrial Tribunal, Durgapur & Others


Company & Directors' Information:- THE COTTON CORPORATION OF INDIA LIMITED [Active] CIN = U51490MH1970GOI014733

Company & Directors' Information:- J. K. COTTON LIMITED [Active] CIN = U17111UP1924PLC000275

Company & Directors' Information:- P A S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111TN2005PTC058104

Company & Directors' Information:- V R A COTTON MILLS PRIVATE LIMITED [Active] CIN = U15311PB1997PTC020061

Company & Directors' Information:- P D COTTON PRIVATE LIMITED [Active] CIN = U52321GJ2007PTC051857

Company & Directors' Information:- C A V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1987PTC002014

Company & Directors' Information:- R. I. COTTON PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC061139

Company & Directors' Information:- V K S M COTTON MILLS LIMITED [Active] CIN = U17111TZ1998PLC008682

Company & Directors' Information:- D D COTTON PRIVATE LIMITED [Active] CIN = U17120MH1994PTC156054

Company & Directors' Information:- P K COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111DL2004PTC130281

Company & Directors' Information:- P. I. COTTON PRIVATE LIMITED [Active] CIN = U17120GJ2007PTC050747

Company & Directors' Information:- B V COTTON PRIVATE LIMITED [Active] CIN = U17111GJ2004PTC044704

Company & Directors' Information:- S K COTTON PRIVATE LIMITED [Active] CIN = U17110GJ2006PTC047511

Company & Directors' Information:- S R COTTON PRIVATE LIMITED [Active] CIN = U17120KA2013PTC071881

Company & Directors' Information:- S D S COTTON PVT LTD [Active] CIN = U17115PB1991PTC011007

Company & Directors' Information:- K P G COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1993PTC004509

Company & Directors' Information:- D B V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1982PTC001145

Company & Directors' Information:- MAYURAKSHI COTTON MILLS LTD [Under Liquidation] CIN = U17299WB1963PLC025722

Company & Directors' Information:- P A COTTON PVT LTD [Active] CIN = U74999WB1992PTC055525

Company & Directors' Information:- D D COTTON PRIVATE LIMITED [Not available for efiling] CIN = U17115PB1994PTC014981

Company & Directors' Information:- S S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115PB1997PTC019918

Company & Directors' Information:- K S COTTON PRIVATE LIMITED [Active] CIN = U17299WB2003PTC096994

Company & Directors' Information:- J R COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TN1996PTC034302

Company & Directors' Information:- D C H COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1997PTC008130

Company & Directors' Information:- B D COTTON PRIVATE LIMITED [Active] CIN = U51909GJ1978PTC003234

Company & Directors' Information:- L D COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17291MH2014PTC256832

Company & Directors' Information:- A D COTTON MILLS PVT LTD [Active] CIN = U99999MH1970PTC014837

Company & Directors' Information:- G K COTTON PVT LTD [Active] CIN = U00309BR1982PTC001698

Company & Directors' Information:- R R COTTON PRIVATE LIMITED [Active] CIN = U17111DL1998PTC094459

Company & Directors' Information:- DURGAPUR CORPORATION PRIVATE LIMITED [Active] CIN = U27209WB2016PTC217839

Company & Directors' Information:- C R COTTON INDIA PRIVATE LIMITED [Active] CIN = U17299DL2006PTC145903

Company & Directors' Information:- V P K COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2000PTC009530

Company & Directors' Information:- INDUSTRIAL UNION PRIVATE LIMITED [Dissolved] CIN = U91110KL1901PTC000443

Company & Directors' Information:- UNION COTTON COMPANY LIMITED [Dissolved] CIN = U99999MH1927PTC001294

Company & Directors' Information:- UNION MILLS LIMITED [Dissolved] CIN = U99999MH1988PTC000078

    M.A.T.No. 2001 of 2011 (Appellate Side)

    Decided On, 28 July 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE TAPEN SEN & THE HONOURABLE MR. JUSTICE TAPASH MOOKHERJEE

    For the Appearing Parties: Kalyan Bandyopadhyay, Sr. Advocate, Anindya Lahiri, Sourav Mondal, R. Ray, Narayan Chandra Bhattacharya, Subhra Nag, Susanta Pal, R.N. Majumder, Supratim Bhattacharya, Advocates.



Judgment Text

Tapen Sen, J.

1. This appeal is directed against an Order dated 16.11.2011 passed by a learned Single Judge of this Court in WP No. 18516(W) of 2003 whereby and whereunder the said learned Single Judge was pleased to dismiss the Writ Petition.

2. The challenge before the Writ Court was an Award dated 16.09.2003 passed by the learned 9th Industrial Tribunal, Durgapur, in Case No. X-7(2000) whereby and whereunder the said Award was passed partly in favour of the Mayurakshi Cotton Mills Employee’s Union and Mayurakshi Cotton Mills Shramik Union and partly in favour of the management and the added union. It was held that the Bipartite Settlement dated 27.02.1993 between the management of Mayurakshi Cotton Mills and another union operating in the mills, was reasonable and valid EXCEPT the following two conditions:-

(a) that the status of the employees would be temporary; and

(b) that the employees who did not sign the bipartite settlement shall be deemed to have given up their jobs for not signing the Bipartite Settlement and thereafter not joining the Company.

3. The Award further directed the management to consider the cases of the employees relating to confirmation as per Model Standing Orders or Service Rules, if any, as the case may be. It was further ordered that the employees of these Unions must be allowed to join the Company if they wanted to sign the Bipartite Settlement dated 27.02.1993 without accepting these two conditions referred to above.

4. The services of such employees were directed to be treated as continuous from the date of their employment in the Company inspite of the fact that they had not joined during and after the lock out. However, it was ordered that they would not be entitled to any back wages for not joining the company. It was further held that all the other conditions of the Bipartite Settlement EXCEPT the two conditions mentioned above, were valid and reasonable.

5. It was against the aforementioned Award that the Mayurakshi Cotton Mills Employee’s Union and Mayurakshi Cotton Mills Employer’s Union filed the above mentioned Writ Petition.

6. From the facts as have been submitted by the learned Counsel appearing for the parties, it is evident that in the year of 1986 the manufacturing unit of Mayurakshi Cotton Mills Ltd (hereinafter referred to as the erstwhile Company) was closed. They were dealing in the manufacture of cotton textile articles from raw cotton. In the year 1989 (28.09.1989), the company was wound up.

7. On 04.01.1990 the Govt. of West Bengal, by a Notification, took over the management of the erstwhile Company and formed a Committee of Management to manage the affairs of the Mills pending formation of a new Company under the Chairmanship of Mr. Somnath Chatterjee, an eminent Member of Parliament.

8. On 18.02.1990, the operation of the Mill started after closure but on 18.04.1991, one of the unions, espousing the cause of the majority workmen, submitted a Charter of Demands for better service benefits.

9. Conciliation memos were issued by the Conciliation Officer for negotiation and settlement in respect of the above demands but in the said conciliation proceedings, the union affiliated to CITU as well as management chose not to appear.

10. According to the petitioner union, they were the majority union as, out of a total strength of 600 workmen, their strength was 400. On 26.07.1992 an untoward incident occurred outside the Mill premises and therefore, a lock out Notice was issued on 05.08.1992 informing that the employees covered by the said Notice will not be entitled to any wages or allowance during the period of the lock out.

11. Thereafter on 28.08.1992 the Assistant Labour Commissioner issued a Notice to the Trade Unions for attending a Conciliation Proceeding before the Labour Commissioner to be held on 03.09.1992 over the issue of the lock out. On the said date, i.e. 03.09.1992 a conciliation meeting was held when the management submitted a draft settlement before the Conciliation Officer but it was not accepted by the Unions.

12. Thereafter, a Writ Petition being C.O. No. 13796 (W) of 1992 was filed challenging the lock out. In the meantime, on 27.02.1993 the Bipartite Settlement had been entered upon between the management and a minority Union, namely, the Mayurakshi Cotton Mills Mazdoor Union wherein the following three conditions, amongst others, were laid down:-

(a) The Management, as a gesture of goodwill and for the sake of good industrial relations and harmony agreed to employ all workmen / employees who were on the role on 05.08.1992 (the date of the lock out notice) on temporary basis;

(b) The lock out will be lifted within two weeks from the date of the settlement but commencement of work and intake of workmen will be in a phased manner i.e. workers for cleaning the mills and electrical maintenance will report in the first phase and the remaining workmen for production and others will be taken in gradually whereafter a programme would be made and notified at the Mill Gate by the Manager. The total intake would be completed within 45 days from the date of the lifting of the lock out provided that each and every workmen / employees individually signed the agreement or a copy thereof in token of his acceptance of all the terms and conditions contained in the said Memorandum of Settlement.

(c) The cases of such workmen who were not allowed entry into the Mills on account of their reaching the age of superannuation would be referred to the Medical Board by the Management for determination of their age by medical tests at the cost of the Management. The Management would try to get the report available within 60 days from the date of signing of the agreement failing which, the Management would allow the concerned workmen to resume their duties w.e.f. 61st day. Those who were found to have attained the age of 58 years, their employment will be discontinued forthwith.

13. On 15.03.1993 the lock out was lifted and all workmen were required to sign the Terms and Conditions of the Settlement as token of their acceptance. Subsequently, on 16.08.1993 the Writ Petition, namely C.O.No. 13796 (W) of 1992 challenging the lock out notice was dismissed holding inter-alia that it was not maintainable and that the subject matter should be decided under the Industrial Disputes Act.

14. It was submitted that thereafter the Appellant Union preferred MAT 2905 of 1993 being aggrieved by the Order dated 16.08.1993. An interim Order was passed on 11.10.1993 granting liberty to the members of the Appellant Union to join the Mill without prejudice to their rights. According to the Appellants, although they had a majority of 450 members who expressed their desire to join, they were not allowed to do so. Thereafter by a judgment dated 20.03.1995, MAT 2905 of 1993 was allowed holding inter-alia that the workmen had a right to enforce their statutory obligations conferred under Sections 25F and 25G of the Industrial Disputes Act. Their Lordships, while dealing with the facts of the case, also dealt with various provisions of the Industrial Disputes Act and specially, Sections 25F and 25G of the said Act. Their Lordships further held inter-alia that a Company owned wholly and fully by the Government, cannot act in contravention of the provisions of section 25F and section 25G of the Industrial Disputes Act, 1947. It was also held that it was well settled that the service condition of a workman in any industry who had been in continuous service for not only one year under an employer cannot be retrenched unless notice of retrenchment was served upon him in accordance with the provision of section 25F and he was paid retrenchment compensation after following the procedures laid down in section 25G of the Industrial Disputes Act, 1947. Termination of service of a workman who had been in service for more than one year in contravention of provisions of section 25F and section 25G of the Industrial Disputes Act, 1947 was, on the face of it, illegal and inoperative. The learned Judges held, that in the facts and circumstances of the case, a writ would not lie as the terms and conditions of employment of an employee in the private law domain could not be enforced under Article 226 of the Constitution of India. The workmen had a right to enforce their statutory rights conferred under Section 25F and Section 25G of the Industrial Disputes Act, 1947 which are purely statutory. Accordingly, their Lordships disagreed with the views expressed by the learned Trial Judge.

15. Subsequently on 17.10.1998 a Notice was issued by the Management stating that a section of the employees of permanent category who were still out of job on their own since long and had preferred to move the High Court against the management, and who were interested in re-joining the Company foregoing their claims filed in Court could apply and their applications may be considered by 31.10.1998 if they were found to be fit physically and mentally and their capability to work was to be determined by medical tests to be carried out. These employees were requested to appear before the registered medical practitioner at their Mill premises at Panchra, in Birbhum, on a date to be informed to them in due course.

16. In the meantime some workmen who had been charge-sheeted for the unruly incidents that had taken place on 26.07.1992 and which had led to the lock out faced a criminal trial but they were acquitted. Thereafter, on 08.03.2000, a Judgment was passed by the Hon’ble Supreme Court in an SLP which had been filed by the Management against the Judgment dated 20.03.1995. The Hon’ble Supreme Court set aside the Judgment of the Division Bench and restored the Judgment of the learned Single Judge passed on 16.08.1993 and further directed the State Government to make a reference under the Industrial Disputes Act, 1947 with regard to the issues involving employment, non employment and the validity of the Settlement. Some of the portions of the Order of the Hon’ble Supreme Court would be relevant to take note of. The Judgment of the Hon’ble Supreme Court has been brought on record between Pages 98 to 102 of this Paper Book and we quote the relevant portions:-

'The learned counsel did not so much dwell upon the question whether the appellant-mills is a ‘State’ for the purpose of Article 12 of the Constitution or not and even if the appellant is held to be an instrumentality of the State, is bound by the provisions of Part III of the Constitution and is amenable to the writ jurisdiction of the High Court, it was not a fit case where the various contentions raised between the parties could have been thrashed out in a summary proceeding. The learned counsel further submitted that the fact that the company was in financial straits could not be seriously disputed inasmuch as in the course of the liquidation proceedings the Government had purchased the same and thereafter because certain problems had arisen the management declared a lockout and pursuant to the settlement entered into between the workmen and the management, the lock out was lifted subject to certain terms and conditions mentioned in the settlement. The learned counsel further submitted that whether the terms of the settlement amount to unfair labour practice or results in victimization of any workmen and whether any of the workmen who are members of the Respondent-union was a workman after reopening of the mills after purchase by the Government and whether continued to be so, are all questions of fact to be determined in an appropriate proceeding and in the present case, reference to an industrial Tribunal would be the most proper course. Shri Dipankar Gupta, learned senior counsel appearing for the State of West Bengal, supported the stand taken by the appellants and submitted that the Government would refer the dispute in relation to the validity of the settlement or employment of the other workmen along with all other allied issues to an industrial Tribunal. Shri Dholakia, learned Senior Advocate appearing for the contesting Respondents submitted that the identity of the workmen in question was not in serious dispute and a bare perusal of the memorandum of settlement arrived at between the workmen and the management itself would clearly indicate that it was oppressive resulting in victimization of workmen or amounting to unfair labour practice on the part of the management resulting in unemployment of a large number of workmen. He further submitted that it was in those circumstances that the High Court made the order under appeal and that it is only in cases where the facts are in dispute that an adjudication by any other Tribunal or a civil court would arise but not in cases where the facts are not in dispute. He submitted that it was not at all difficult for the management to find out as to who were the workmen on the reopening of the mills and provide employment to all of them and the management cannot alter their condition of service to their disadvantage. He emphasised that it is in that context the High Court had given a direction based on Section 25F and 25G of the Act read with Article 21 of the Constitution and such an order which is very progressive in nature should not be interfered by this Court. We have given our anxious consideration to the rival submission made by the learned counsel on either side. Whether a settlement is fair or unfair or valid cannot be examined in the absence of factual background in which the same was entered into. If really the mills was in financial doldrums and retrenchment had to take place in some form or the other and if a method was to be worked out by the management and the workmen, which is fair, it cannot easily be said that the mills should not work with lesser number of workmen and provide a scheme for retrenchment or otherwise. It may not be easy to state that such settlement is unfair or amounts to victimisation. The option was between closure of the mills itself or opening of the mills with lesser number of workmen. Sometimes hard choices have to be made and sacrifices are expected to be made by either side. These aspects have to be borne in mind in deciding such questions. Therefore, we cannot in the abstract, in the absence of material before the Court, state that the High Court could have come to the conclusion one way or the other and particularly based on the theoretical approach to Sections 25F and 25G of the Act or Article 21 of the Constitution. We are of the view that the order made by the Division Bench deserves to be set aside and that of the learned Single Judge be restored, however, with the modification that a reference shall be made, as stated by Shri. Dipankar Gupta, in respect of all matters arising in this case as to the employment, non-employment, the validity of the settlement and all other allied issues and the reliefs to be granted to the parties, to an appropriate industrial Tribunal within a period of six weeks from today and such Tribunal shall enter upon the reference for adjudication as early as possible and decide the same within a period of six months from the date of reference to it. This appeal shall stand disposed of accordingly. In the facts and circumstances of the case, there shall be no orders as to costs.'

17. Subsequently, on 12.04.2000 the Government of West Bengal, Department of Labour, in compliance of the Judgment of the Hon’ble Supreme Court of India, referred the dispute to the Industrial Tribunal to consider the following questions:-

'1) Whether the bipartite agreement dated 27.2.93 between the management of Mayurakshi Cotton Mills and one union operating in the mill is reasonable and valid.

2) Whether the refusal by the management to allow the workmen who did not sign the agreement dated 27.2.1993, to join duty is justified and lawful?

3) Whether the management is justified in lowering the age of superannuation from 60 years to 58 years.

4) Whether the workmen are entitled to get the benefits of the Cotton Textile industry-wise settlement dated 11.6.1995.

5) Whether the management is justified in not allowing the workmen to enjoy 15 days’ sick leave with full pay and 6 (six) days casual leave with full pay which the workmen used to avoid of in terms of the Omnibus Award for Cotton Textile Industry prior to taking over the unit by the new management.

6) Whether the management is justified in accepting the old records of age of the workmen without verification.

7) What relief, if any are the workmen entitled to in respect of issues No. (1) to (6) above'.

Thereafter, written statements etc. were filed both by the Appellants as well as by the Management and an Award was passed on 14.11.2000 by the 9th Industrial Tribunal holding inter-alia that the Bipartite Settlement dated 27.02.1993 was unreasonable and invalid. It was also held that the Management was not justified in refusing to allow those who had not signed the agreement to join on their duties. It also held that the Management cannot reduce the age of superannuation from 60 to 58. Accordingly, the Management was directed to reinstate the workmen of the contesting unions and clear their back wages from 05.08.1992 (i.e. the date of the lock out) till their reinstatement. The operative portion of the said Award reads as follows:-

'In the result the reference case succeeds. Hence Ordered that the reference case is allowed between Mayurakshi Cotton Mills (1990) Ltd, P.O. Panchrahat, Dist. Birbhum and Mayurakshi Cotton Mills Employees Union and Mayurakshi Cotton Mills Sramik Union on contest. The Award is passed to this effect that the Bipartite Agreement dt. 27.2.93 between management of the Mayurakshi Cotton Mills on one side and one union operating in the mill is unreasonable and invalid. It is also declared that the management is not justified by refusing these workmen who do not sign Agreement dt. 27.2.93 to join their duties. The Management is not allowed to reduce the age of superannuation from 60 to 58. Further it is not allowed to curtail the benefits of 15 days sick leave with full pay and 6 days casual leave with full pay. The management is directed to reinstate the workers of the contesting unions forthwith and further directed to clear up their back wages for the period from 5.8.92 till their reinstatement at the rate of the scales given in the body of the Award. The Management is further directed to extend the benefits of the scales of pay at the following rates with effect from August 92 onwards.'

18. The aforesaid Award became a subject matter of challenge in WP No. 20488(W) of 2000, which was filed by the Management.

19. On 15.12.2000 an interim Order was passed in that Writ Petition staying the Award only to the extent it related to Issue No. 4 i.e., 'Whether the workmen are entitled to get the benefits of Cotton Textile Industry-wise settlement dated 11.06.1995.'

20. Thereafter, even during the pendency of the Writ Petition, the Award dated 14.11.2000 was published on 14.11.2000 determining Issue No. 4 also which had been stayed by an interim Order referred to above and on 29.12.2000, the Award was published.

21. Subsequently, the Management filed WP No. 449 of 2001 challenging the said publication and a learned Single Judge, by an Order dated 29.03.2001, directed fresh publication of the Award excluding Issue No.4.

22. It is submitted that since the management was not able to frustrate the said Award dated 14.11.2000, they set up a Minority Union, namely the Mazdoor Union, with whom the Bipartite Settlement had been entered upon. This Union then filed WP No. 3547(W) of 2001 challenging the Award dated 14.11.2000 on the ground that they were not made parties to the proceedings. No interim Orders were passed and therefore, the said Mazdoor Union filed MAT 1269 of 2001. That Appeal was disposed of on 21.09.2001 by a Division Bench directing the learned Single Judge to hear out WP 3547(W) as early as possible and stayed the Award dated 14.11.2000 till such decision was taken. Such an interim Order then came to be challenged before the Hon’ble Supreme Court and by an Order dated 08.05.2002, the Apex Court passed an Order in SLP No. 1462 of 2002 holding inter-alia that the special leave having been filed against an interim Order dated 21.09.2001, and the controversy raised being in relation to the implementation of the Award dated 14.11.2000, the Order under challenge therefore should not be disturbed and instead, the Writ Petitions which were pending before the High Court should be dispose d of expeditiously. The relevant portion of the Order of the Hon’ble Supreme Court is at running Page 225 of this Paper Book.

23. In compliance of the Order of the Apex Court, the Division Bench of this Court delivered Judgment disposing of both the Writ Petitions being WP No. 20488(W) of 2000 and WP No. 3547(W) of 2001. The Judgment of the Division Bench disposing of both the Writ Petitions stated above is reported in 2003(1) CHN 658. In Paragraph 49 of the said Judgment, we find that the Award dated 14.11.2000 was set aside and the Tribunal was directed to bring the concerned Mazdoor Union on record. The Tribunal was directed to decide the dispute after given the Unions within 4 months. The Division Bench further made it clear that the remand was being made only being for that limited purpose. Paragraph 49 of the said Judgment reads as follows:-

'49. In the result, we set aside the impugned Award dated 14th November, 2000, passed by the Tribunal. We direct the Tribunal to bring the Mazdoor Union on record of the reference case; and decide the dispute after giving the said union reasonable opportunity of contesting the case, if desired, by leading evidence on the issues mentioned in the order of reference. We make it clear that we are remanding the case only for this limited purpose. The Tribunal shall complete the entire exercise within a period of four months from the date of receipt of a copy of this judgment. Both the writ petitions are, accordingly, disposed of. There will be no order as to costs.'

Thereafter the Award dated 16.09.2003 was passed which was challenged in WP No. 18516(W) of 2003 and in which, the impugned Judgment was delivered on 16.11.2011 by the learned Single Judge dismissing the Writ Petition.

24. Under the circumstances, we have now looked into the Award dated 16.09.2003 which, by reason of the dismissal of the Writ Petition by the learned Single Judge stands upheld. We have heard the learned Counsel appearing for the parties at great length in this case. We have perused the Order of the learned Single Judge in juxtaposition with the Award dated 16.09.2003. It is evident upon reading the Award dated 16.09.2003 that the Tribunal has already recorded a finding to the effect that one of the conditions in the Bipartite Settlement to the effect that only those who would sign the same would be allowed to join, was unjustified. The Tribunal, therefore, correctly held that it would be unjustified to hold that the services of the aggrieved union employees could be terminated for not signing the Bipartite Settlement. We, also, hold accordingly.

25. The other part of the Award which also needs to be upheld is the finding of the Tribunal to the effect that the condition that the status of the employees would be temporary, was unjustified. We, also hold accordingly.

26. We will, now, go back and look into the Bipartite Settlement. One of the offending clauses, as per the submissions of the learned Counsel, is that the management would employ only those workmen who were on the role of the company on the date of the lock out i.e. 5th August, 1992 and that too, on temporary basis. We are unable to appreciate such a clause because what would be the effect thereof upon those employees who were already on the roles prior to date of the lock out i.e. 18.02.1990 (the commencement of the operation of the mill) and till 05.08.1992 i.e. the date of the lock out, has not been considered by anyone. This aspect of the matter was also not taken into consideration by the learned Single Judge while passing the impugned Judgment. Such employees cannot be left in the lurch without any fault. We therefore hold that these employees must also be employed.

27. The second aspect which, according to the learned Counsel for the Appellants is also offending is that those who were found to be 58 years of age would be discontinued forthwith. This part amounts to a sudden change of the service conditions by way of a Settlement. This aspect also requires to be dealt with. Moreover, the first Award which was passed on 14.11.2000 has already been set aside by the Division Bench while disposing of WP No. 20488(W) of 2000 and WP No. 3547(W) of 2001. Therefore, it is only the second Award passed on 16.09.2003 that remains to be looked into.

28. Learned Counsel for the Respondents have argued that after winding up, the Company was purchased by the Government and the new Company has the right to frame its own regulations and therefore, if they reduce the age of superannuation there is nothing wrong with the same. There is no dispute with regard to the aforementioned legal proposition but whether the date of superannuation could be reduced in the manner stated through a Memorandum of Settlement and that too, by a Settlement by and between a minority union (see Paragraph 14 of the Award) is a matter that cannot be appreciated. By entering into such a Settlement, which has the effect of reducing the age of superannuation, the said portion of such a Settlement cannot be upheld. The learned Counsel appearing for the Respondents have further stated that till date this Company has not yet framed its own Certified Standing Orders and it merely follows the Industrial Employment Standing Orders Act, 1946. The Respondents have further argued that the Company being a new Company cannot be burdened with additional liabilities. We are of the view that the particulars of these Appellants ought to have been duly considered for purposes of finding out as to whether they were employed prior to the lock-out or not. If they were not on the roles of the company then the question of fresh employment comes into play but at the same time we must also look into the intention of the Government of West Bengal as would be evident from their letter dated 16.01.2007 written by the Special Secretary to the Government of West Bengal and addressed to the Managing Director of Tamralipta Cooperative Spinning Mills Ltd. which is in the nature of extending support to the Company. By reason of that letter, which is at running Page 470 of the Paper Book, it was stated that they were willing to offer employment to the ex-workers of Mayurakshi Cotton Mills Ltd. who were involved in Court cases. That letter needs to be quoted, the same reads as follows:-

'Government of West Bengal

Cottage & Small Scale Industries Department

Writer’s Buildings, Kolkata – 700 001

Memo No. 34/SS/CS/O/C-IV/2S-13/2006

Date: 16th January, 2007

From : Special Secretary to the Government of West Bengal

To : The Managing Director,

Tamralipta Cooperative Spinning Mills Ltd.

Kamalaya Centre Building, 2nd Floor,

Room No.-206.

156A-Lenin Sarani, Kolkata-700013

Sub: Taking over the management of the Mayurakshi Cotton Mills Ltd by Tamralipta Cooperative Spinnings Mills Ltd.

Sir,

With reference to your letter No: CO/Estt-PR.U/11A/MCM(7)/316 dated 09.01.2007 on the subject mentioned above, I am directed to convey the approval of the State Government to the following for your spinning Mill’s running of Mayurakshi Cotton Mills Ltd. on management basis:-

ii) The current financial assistance @ Rs. 5.40 lakh per month would continue to be extended by the State government for a period of 1 (one) year from the date Tamralipta Cooperative Spinning Mills Ltd takes over the management of Mayurakshi Cotton Mills Ltd.

iii) The State Government may provide a fund of Rs. 48.0 lakh in the first phase and Rs. 114.0 lakh in the second phase to enable TCML to reorient and install machineries for ensuring 90% capacity utilization for the MCML.

iv) TCML will arrange a working capital of Rs. 150.0 lakh by generating its own resources to run MCML effectively.

The State Government also agrees in principle to the following:-

i) Liabilities of Mayurakshi Cotton Mills Ltd (MCML) up to the date of taking over of the management of the Mill by Tamralipta Cooperative Spinning Mills Ltd (TCML) would be borne by the State Government.

v) The expenses incurred by TCML for running MCML would be debited in the account of MCML.

The matter of full-fledged handing over of Mayurakshi Cotton Mills Ltd to Tamralipta Cooperative Spinning Ltd would be examined at a later date after review of performance of the Mill. The Tamralipta Cooperative Spinning Mills Ltd may al

Please Login To View The Full Judgment!

so offer employment to the ex-workers of Mayurakshi Cotton Mills Ltd who are involved in a Court Case in Hon’ble High Court, Calcutta. You are also requested to suggest a monitoring mechanism for the project of the Mill-level and also at the department level. I am further directed to request you to commence operation of Mayurakshi Cotton Mill Ltd under the management of Tamralipta Cooperative Spinning Mills Ltd at an early date. Yours faithfully, SD/- Special Secretary Memo No. 34/1(1)/SS/CS/O/C-IV/2S-13/2006 Copy forwarded for information to the Managing Director, Mayurakshi Cotton Mills Ltd., 6A Raja Subodh Mallick Square, 5th Floor, Kolkata – 700013. Special Secretary' 29. Considering the aforementioned facts and circumstances, we are of the view that the views expressed by the learned Single Judge supporting the two conditions referred to in the Bipartite Settlement as being bad was justified because the learned Tribunal correctly held that the Award was valid and reasonable EXCEPT the two conditions contained therein and which were-- (a) that the status of the employees would be temporary; and (b) that the employees who did not sign the Settlement shall be deemed to have given up their job. We endorse the views of the learned Tribunal with regard to these two conditions because the Tribunal has rightly held that the other portions of the Award were reasonable EXCEPT these two conditions. To that extent, therefore, the learned Trial Judge was absolutely right in not interfering with the Award of the Tribunal. However, with regard to the reduction in the age of superannuation, the learned Trial Judge ought to have considered the views that we have expressed in the foregoing Paragraphs. That not having been done, the consequential finding of the learned Trial Judge dismissing the Writ Petition by holding that the fixation of the age through a Bipartite Settlement was justified, cannot be sustained. That portion of the Judgment of the learned Trial Judge is therefore set aside. We, accordingly hold that the age of superannuation could not have been changed through a Bipartite Settlement. 30. This Appeal, therefore, succeeds in part. We, now direct the Respondents to take action accordingly within a period of eight weeks from today. 31. So far as the back wages are concerned, we are not inclined to pass any Order for back wages following the principles of 'no work no pay'. 32. As a result, this Appeal is partly Allowed. 33. Urgent Certified Copy to be issued upon appropriate application(s) being made in that regard. Tapash Mookherjee, J. I Agree. Later: After we had delivered the Judgment in this Case, one Mr. Kamal Chowdhury, learned Counsel appeared and stated that he represents the Company / Respondent No.3. He prayed for stay of this Judgment. We have considered the facts and circumstances of this Case in extenso and we do not find its expedient to grant any Order of stay. The prayer for stay is accordingly, Rejected. Tapash Mookherjee, J. I agree.
O R