HMT KAMGAR SANGH Vs. UNION OF INDIA

JUDGEMENT

(1.) By filing this writ petition, petitioner, which is a Trade Union of 143 ex-employees of the HMT Watch Ltd., Ranibagh, has prayed for the following reliefs:

(2.) The facts of the case are as follows: In the year 1953, the respondent Company was incorporated by Government of India as a public sector company fully owned by it. A unit at Ranibagh was engaged in production of wrist watches. In between 1985 - 86, members of the petitioner Trade Union (total 143 employees) were appointed. Appointment letters of the petitioner's members were issued on various dates, between the period of two years. However, terms and conditions were issued once and for all times by way of same appointment order. In 1987, the petitioner Trade Union representing 143 employees was registered as Trade Union bearing registration No. 7010/1987-88. The present petition has been filed by the said registered Trade Union. On 13/1/2016, the respondent Company passed a closure order, as the unit had become non-viable and uneconomic. It offered VRS package to the willing employees. The claim of the petitioner is that the closure order was passed without following due procedure, prescribed under the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act", for brevity). The members of the petitioner Trade Union were unwilling for the closure and did not opt for any VRS. On 16/5/2016, an application under Sec. 25-O of the ID Act was filed by the respondent Company to the Secretary, Department of Labour, Ministry of Labour, Government of India - respondent no. 1. The petitioner raised a dispute before the Assistant Labour Commissioner, Bareilly inter alia asserting that training period of its members should be included in the total length of service for the purpose of calculating the qualifying service for grant of VRS. However, the Assistant Labour Commissioner, did not adjudicate the same and referred the dispute for resolution to be decided in the proceedings of closure of respondent Company to the Labour Ministry, Government of India. On 17/11/2016, the application under Sec. 25-O of the ID Act was decided and order was passed for closure of the respondent Company with immediate effect subject to certain conditions in it. On 29/11/2016, on the basis of permission of closure, a notice of closure was published by the respondent Company. On the same date, termination of service consequent to closure was effected. On 30/11/2016, notice of closure and service termination orders were withdrawn by respondent Company with immediate effect. On 8/12/2016, the petitioner challenged the closure of the Company before this Court in WPMS No. 3292 of 2016. An order of stay was passed on the date of hearing on admission. During the pendency of the writ petition, the stay remained effective and during the pendency of the writ petition, this Court passed another order directing the Ministry of Labour, Government of India to decide the representation of the petitioner. The Regional Provident Fund Commissioner also raised a demand of Rs.3,05,58,569.00 towards EPF and allied dues for wages and salaries of the employees. On 18/3/2019, while hearing the writ petition referred to above, the petitioner sought an adjournment for filing an application for amendment to the writ petition to challenge the order dtd. 5/2/2018, which was allowed. However, the Court vacated the interim order passed earlier. Learned counsel for the petitioner also contended that its members were being paid salary and taxes & contributions towards EPF are being deducted from their salary during the entire period. On 22/3/2019, a final order of closure was passed by respondent Company closing the Company with effect from 17/11/2016, retrospectively. On 11/6/2019, petitioner sought leave of this Court to withdraw the writ petition with a liberty to file fresh with better particulars. The prayer was allowed and writ petition was allowed to be withdrawn with liberty to file afresh. Hence, this writ petition has been filed.

(3.) In the course of hearing of the writ petition, Shri A.S. Rawat, learned Sr. Advocate appearing for the petitioner would raise two substantial mixed questions of fact and law. Firstly, it is contended that the period of probation / training has not been considered by the Management of respondent Company for calculating the qualifying years of service for grant of VRS, which would entail them higher amount of retirement benefits. The second substantial mixed question of fact and law is that in between first closure 17/11/2016 and 22/3/2019, a stay order was operating and EPF contributions and income tax were deducted from the salaries of the members of petitioner Trade Union. Hence, this period should be calculated for the purpose of determining the total number of years qualifying service for the purpose of calculating retiral dues under the VRS.