This writ application is directed against an award dated September 16, 2003 passed by the learned Judge 9th Industrial Tribunal at Durgapur in case no.X-7(2000).
This case has a checkered history as follows:-
Respondent no.3 was a company incorporated under the Companies Act, 1956 having its registered office at post office Panchra , District Birbhum West Bengal. The Mill of the respondent no.3(hereinafter referred to as the said Mill) was a manufacturing unit of cotton textile articles from raw cotton. It was closed in the year 1986.
The Industrial Reconstruction Corporation of India Ltd., referred the matter to BIFR. The said Mill was wound up in terms of an order dated September 20, 1989. The assets of the said Mill were purchased by the Government of West Bengal in auction sale in liquidation proceeding of company. After purchasing those assets, a notification was issued by the Government of West Bengal on January 4, 1990 constituting a committee of management of the said Mill. The said Mill started functioning from February 1990. Most of the employees /workmen of the erstwhile company were engaged afresh to there respective posts on temporary basis which they had been holding prior to the winding up of the above company.
On April 18, 1991 Mayarukshi Cotton Mills Shramik Union submitted a chatter of demand to the management of the respondent no.3 sending a copy of the same to the office of the Assistant Labour Commissioner, Government of West Bengal, Suri, Birbhum. On the basis of the above chatter of demand the Assistant Labour Commissioner, Government of West Bengal, Suri, Birbhum issued a conciliation memo dated October 31, 1991 inviting the management of the respondent no.3 and the representatives of the three unions, i.e. petitioner nos. 1,2 and the respondent no.4 to participate in the negotiations for settlement of the following issues:-
i) Introduction of the new 1991 wage structure for Cotton Mills workers.
ii) Introduction of PF, annual leave and other statutory formalities.
iii) Other issues.
Negotiations took place in between the management of the respondent no.3 and the representatives of three unions of workers of the Mill of respondent no.3 on several occasions.
A notice of lockout dated August 5, 1992 was issued by the Management of the said Mill on the ground of deterioration of law and order in an around the said Mill. The petitioners challenged the above lock out notice by filing an application under article 226 of the constitution of India bearing C.O. No.13796(W) of 1992. During the pendency of the above writ application, a bipartite settlement dated February 27, 1993 in between the committee of management of the said Mill and the respondent no.4 was arrived at. The memorandum of settlement contained the terms and conditions with regard to the wages of the workmen/employees, period of validity of the agreement, amongst others. The Committee of management of the said Mill issued a notice dated March 15, 1993 lifting the lockout in the manner narrated therein. In terms of the above notice the total intake of personnel/workmen was decided to be completed within 45 days from lifting of lockout. The workmen were asked to sign copy of the bipartite settlement as a token of acceptance of the conditions contained in the bipartite settlement dated February 27, 1993.
The above writ application bearing C.O. No.13796(W) of 1992 was dismissed by an order dated August 16, 1993. The petitioner unions preferred an appeal bearing FMAT no.2905 of 1993. By order dated October 11, 1993 passed in the above appeal a Division Bench of this court granted liberty to the members of the petitioner unions to join their duties in the said Mill after signing the aforesaid bipartite settlement without prejudice to their rights and conditions in the above appeal. The above appeal was allowed by a Division Bench of this court on March 20, 1995. The respondent no.3 preferred Civil Appeal no.6552 of 1995 before the Hon’ble Supreme Court against the aforesaid Judgment and the same was disposed of following directions:
' We are of the view of 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 Kipankar 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 issued and the reliefs to be granted to the parties, to an appropriate industrial Tribunal within 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.
(S. Rajendra Babu, J.)
(S. N. Phukan, J.)
MARCH 8, 2000'
By virtue of an order dated April 12, 2000 the Government of West Bengal referred the above industrial dispute between the respondent no.3 and its workmen represented by the M/s. Mayurakshi Cotton Mills Employees Union and Mayurakshi Cotton Mills Shramik Union for adjudication of the following issues:
'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. Weather 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 avail 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.'
The above order of reference was challenged by the petitioner unions in an application filed under article 226 of the constitution of India bearing W.P. NO.2115 of 2000. On September 5, 2000 a learend Single judge of this court disposed of the above writ application with observation that the reference had been made in terms of the order passed by the Hon’ble Supreme Court. The learned tribunal passed an award dated November 14, 2000 in the matter.
The respondent no.3 filed an application under article 226 of the constitution of India bearing W.P. no.20488(W) 2000 challenging the above award dated November 14, 2000 passed by the respondent no.1 in case no. X-7 of 2000. By an order dated December 15, 2000 passed on the above writ application the operation of the above award so far as issue no.4 was concerned was stayed till disposal of the above writ application.
On December 29, 2000 the Government of West Bengal published the entire award dated November 19, 2000 passed in case no.X-7 of 2000 by the respondent no.1. The respondent no.3 filed an application under Article 226 of
the constitution of India bearing W. P. no.449 of 2001 challenging the validity of the action of the Government of West Bengal in publishing the above award. The above writ application was disposed by a Single Bench of this court on March 29, 2001 modifying the order of publication of the award to the extent that the state authority would not give effect to issue no.4. By order dated April 4, 2001 the Government of West Bengal published the award passed by the respondent no.1 in case no. X-7 of 2000 afresh with the conditions that the portion of the award relating to issue no.(4) would not be given effect to.
The respondent no.4 also filed an application under article 226 of the constitution of India bearing W.P. no.3547(W) of 2001 challenging the award dated November 14, 2000 passed by the respondent no.1 in case no.X-7 of 2000.
Since no interim order was passed in the above matter an appeal bearing MAT No.1269 of 2001 was filed by the respondent no.4 and the same was disposed of by a Division Bench of this court by an order dated September 21, 2001 with a direction to hear out the above writ application expeditiously and staying the operation of the impugned award till such decision. The petitioner union, filed a special leave to appeal(Civil) bearing No.1462 of 2002 against the above judgment and order dated September 21, 2001 passed in MAT 1269 of 2001. The above SLP was disposed of by the Hon’ble Supreme Court by an order dated May 8, 2002 with the following directions:
'Accordingly the special leave petition is disposed of with the order that the pending writ petitions i.e. W.P. No.3547(W)/2001 and 20488(W)/2000 shall be disposed of in accordance with law by Division Bench of the High Court expeditiously by 30th September, 2002. The interim order passed on 21.9.2001 which is under challenge in present special leave petition shall remain operative till the disposal of the writ petitions. The special leave petition is disposed of.'
Pursuant to the above direction of the Hon’ble Supreme Court a Division Bench of this court after analogous hearing of the writ applications bearing W.P. 20448(W) 2000 and W.P.3547(W) of 2001 disposed of the above writ applications on September 2, 2002 remanding the industrial dispute under reference back to the respondent no.1 with the observations that the learned Tribunal had been mainly asked determine the questions of reasonableness and validity of the bipartite settlement; and not the question of its binding nature. The operative portion of the above decision is quoted below:
'47. Since we have come to the conclusion that the award cannot be sustained as the Mazdoor Union was not given any opportunity to contest the case before the Tribunal, and we find it just and proper to direct the Tribunal to hear the Mazdoor Union and pass its award thereafter, we do not propose to go into the contentions raised by the learned counsel for the company.
48. We put it on record that the few decisions cited by Mr. Bhattacharya and Mr. Bandapadhyay in support of their respective contentions, in our view, have little relevance to the questions debated at the bar. Precisely for this reason we do not find any necessity for dilating on the facts and principles involved in the said decisions.
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.'
In compliance of the above order the respondent no.1 passed the impugned award dated September 16, 2003 with the following order:
'That an award be passed to he effect that the proceeding under reference is disposed of partly in favour of the Mayurakshi Cotton Mills Employees Union and Mayurakshi Cotton Mills Shramik Union and partly in favour of the Management and added union. The Bipartite Agreement dated 27.2.93 between the management of Mayurakshi Cotton Mills and one union operating in the mill are reasonable and valid in the matter of all the terms and conditions of agreement save and except the terms and conditions of the settlement namely, that the status of the employees would be temporary and that the employees who did not sign the Bipartite settlement shall be deemed to have given up the job for not signing the Bipartite Settlement and thereafter not joining the company. The company is directed to consider the cases of employees relating to confirmation as per model standing order, or the service rule of any as the case may be. The employees of these unions must be allowed to join the company if they want to sign the Bipartite Settlement dt.27.2.93 without accepting those held by this Tribunal as not valid and reasonable. The service of these employees shall be treated as continuous from the date of their employment in this company even though they did not join the company during and after the lockout. However, they will not be entitled to any back wages for not joining he except the two mentioned hereinbefore and valid and fair and reasonable.
Send a copy of this Award to the Secretary, Labour Department, Govt. of West Bengal.
Furnish copy of this Award to the parties free of cost.
Dictated & corrected by me
9th Industrial Tribunal
It is submitted by the learned counsel appearing on behalf of the petitioners that the learned Tribunal took extraneous issues in to considerations for passing the impugned award in deviation from the purpose mentioned in the judgment dated September 2, 2002 in the matter of Mayurakshi Cotton Mills (1990) Ltd. & Anr. Vs. Nineth Industrial Tribunal, Durgapur, reported in (2003) 1 CHN 658. According to him, the finding of the learned Tribunal was not correct that the company had been borne in the 1990. According to him, the provisions of sub-section(3) of Section 445 of the Companies Act, 1956 had no manner of application in the instant case in view of the fact that the company carried on its previous business. It is submitted by him, that in view of the above submissions, the learned Tribunal determined the status of the workmen erroneously and they could not be treated as temporary workmen. According to him, the workmen were in service till declaration of lockout in the said Mill in the year 1992. According to him, the petitioners unions represented majority of workmen and the finding of the learned Tribunal on that issue was based on no evidence. It is also submitted that the learned Tribunal was in error in determining the issue of reduction of the age of retirement of workmen on attaining the age of retirement on superannuation placing reliance on the provisions of industrial Employment(standing orders) Act, 1946. It is also submitted by him that learned Tribunal was not justified in directing the parties to act upon the bipartite agreement dated February 27, 1993 and to refuse employment to those workmen who had not signed that agreement. According to him, the refusal of payment of back-wages was also not correct.
It is submitted by the learned Counsel appearing on behalf of the respondent company that the Government of West Bengal purchased the said Mill from the official liquadator of this Hon’ble Court as a individual entity free from any encumbrances and formed a committee of management by Notification no.4 C1/com/TE dated January 4, 1990.to run the said Mill provisionally. It is reiterated by him that the purchase of the assets of the said mill was without any condition accepting liability of the workman of the erstwhile employer. According to him, all the officers and workmen of erstwhile company stood discharged in terms of the provisions of sub-section(3) of Section 445 of the Companies Act, 1956 consequent upon the winding up of the erstwhile company by the order passed by this High Court in winding up proceeding and purchase of the assets of the said Mill from the official liquadator of this High Court. According to him, the respondent company is not a member of Cotton Textile Industries Association and as a result, the award passed in respect of Cotton Textile Industries had no manner of application with regard to the terms and conditions of services of the workman of the respondent company. It is also submitted by him, that till the framing of service conditions of the workmen of the respondent company the age of retirement of the workmen of the respondent company was 58 years in accordance with the provisions of the Industrial Employment (Standing Orders) Act, 1946 read with the provisions of the Model Standing Orders. According to him, the petitioner unions were represented by the minority workmen and as a result, the conditions of the bipartite settlement dated February 27, 1993 in between the respondent company and the respondent union was valid. According to the learned Counsel appearing for the respondent company the impugned award should not be interfered with.
The above submissions made on behalf of the respondent company were adopted by the learned counsel appearing on behalf of respondent No.4.
I have heard the learned counsels appearing for the respective parties carefully and have considered the facts and circumstances of this case.
So far as the first ground for challenge is concerned, I find that the learned Tribunal passed the impugned award considering the issues mentioned in the order of reference dated April 18, 2000 passed by the Government of West Bengal in exercise of powers conferred by Section 10 of the Industrial Disputes Act, 1947. It was under challenge in an application filed under Article 226 of the constitution of India in W.P. No.2115 of 2000. The above writ application was disposed of with the observation that the reference had been made in terms of the order passed by the Hon’ble Supreme Court on March 8, 2000 in Civil Appeal No.6552 of 1995. Therefore, it does not lie on the mouth of the petitioners at this stage that the learned Tribunal passed the impugned award exceeding its limit or jurisdiction.
With regard to the second ground for challenge of the impugned award, the provisions of section 445 of the Companies Act, 1956 are quoted below:-
'445. Copy of winding up order to be filed with Registrar.- (1) On the making of a winding up order, it shall be the duty of the petitioner in the winding up proceedings and of the company to file with the Registrar a certified copy of the order, within [thirty days] from the date of the making of the order.
If default is made in complying with the foregoing provision, the petitioner, or as the case may require, the company, and every officer of the company who is default, shall be punishable with fine which may extend to [one thousand rupees] for each day during which the default continues.
[(1A) In computing the period of [thirty days] from the date of the making of a winding up order under sub-section (1), the time requisite for obtaining a certified copy of the order shall be excluded.]
(2) On the filing of a certified copy of the winding up order, the Registrar shall make a minute thereof in his books relating to the company, and shall notify in the Official Gazette that such an order has been made.
(3) Such order shall be deemed to be notice of discharge to the officers and employees of the company, except when the business of the company is continued.'
The learned Tribunal observed in the impugned award that the said mill had been closed sometime in 1986. It started functioning on and from February 8, 1990 consequent upon appointment of a committee of management by the Government of West Bengal pending formation of a new company. According to the learned Tribunal, the erstwhile company stood dissolved with an order of winding up as also appointment of official liquidator and the new company was neither the successor in interest of the erstwhile company nor its business had been continuing after its closure in 1986 till February 8, 1990. Taking into consideration the above observations as also the provisions of sub-section(3) of section 445 of the companies Act, 1956, I do not find any impropriety or illegality in the conclusion of the learned Tribunal on the above issue. Therefore, the finding of the Learned Tribunal in relation to the new company need not be interfered with.
Regarding the reasonableness of the Bipartite Agreement under reference, the Learned Tribunal found that the said
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company entered into the above agreement with the union representing minority number of workmen. After further consideration of the materials brought on record, the learned Tribunal held that there was no provision for confirmation of the services of the workmen and it was not proper on the part of the management of the said company to terminate the service of those workmen who did not sign the bipartite agreement. But the Learned Tribunal further held that in view of stringent financial condition of the said company, the management of the said company was not unjustified in not extending the benefits of fifteen days’ leave with full pay and six days’ casual leave with full pay to its workmen by virtue of the Bipartite Agreement under reference. To arrive at the above conclusion, the learned Tribunal observed that the said company had every right to re-organise and manage its own affairs and the omnibus award for Cotton Textile Industry was not binding upon the new company in question. Regarding the provision of the age of retirement of the workmen on superannuation, the learned Tribunal took into consideration the provisions of Model Standing Orders in Appendix A of the Bengal Industrial Employment(Standing Orders) Rules, 1946 to hold that the fixation of the age of retirement of the above employees on attaining the age of 58 years by virtue of the Bipartite Agreement under reference was justified. Consequent upon the above findings the Learned Tribunal came to the ultimate conclusion that the conditions of the aforesaid Bipartite Agreement save and except two conditions, i.e. (i) the status of the employees would be temporary without any provision for confirmation (ii) the employees who did not sign the above agreement should be deemed to have given up the job, were fair and reasonabale. The Learned Tribunal further directed the said company to consider the cases of employees relating to confirmation as per model standing order or service rules, if any, as the case may be. Therefore, the decision making process of the learned Tribunal in arriving at the above conclusion was proper and valid. In view of the discussions and observations made hereinabove this writ application is dismissed. There will be, however, no order as to costs.