ENGINEERING MAZDOOR SABHA Vs. ADDITIONAL COMMISSIONER OF LABOUR

JUDGEMENT

(1.) THIS writ petition takes exception to the decision of the additional commissioner of labour, mumbai and specified authority under section 25-n of the industrial disputes act, 1947 (hereinafter referred to as "the said act") dated 29th april, 2003 and 9th july, 2003 respectively. By order dated 29th april, 2003, the said authority partly allowed the application preferred by the respondent company for seeking permission to retrench 284 workmen out of 509 workmen of in its borivli unit only to the extent of 276 workmen on the conditions stated in the order. The correctness of that decision was put in issue by the petitioner union, as well as respondent no. 3 union, which are the two unions operating in the borivli unit of the respondent company by way of review as provided under section 25-n (6) of the said act. That review application came to be rejected by the second order dated 9th july, 2003. As mentioned earlier, the respondent company made application for permission to retrench 284 workmen out of total 509 workmen working at its borivli unit on 16th january, 2003 under section 25-n (l) of the said act by complying necessary formalities and furnishing requisite information. The substance of the stand taken in this application is that due to unwieldy financial constraints, the company has no option, but to rearrange its affairs, so as to meet with the liabilities of the outstanding dues and recurring expenses and to make the operation of borivli unit viable in all respects. The application was opposed by both the unions. Insofar as the petitioner union is concerned, the stand taken in the reply filed on January 27, 2003 is that the proposed retrenchment was by way of victimisation on account of the fact that the workmen on and from 30th november, 2002 have decided to become members of the petitioner union and have given up their membership of respondent no. 3 union, which was functioning hand in glove with the management to enable the management to do away with the services of workmen and ultimately close down the establishment. It is stated that the petitioner union had already applied for cancellation of recognition of respondent no. 3 union. Besides, complaints regarding unfair labour practices were instituted and pending. In other words, the case of the petitioner union was that the proposed retrenchment was only by way of victimisation for trade union activities. Besides, the petitioner asserted that the reasons given by the company for seeking retrenchment permission were neither genuine nor real and that the same were, in any case, not adequate. It was also asserted that the proposed retrenchment was against the interest of the workmen and the public at large. It was also urged that the company has suppressed material particulars and made misstatements, for which reason the application as filed deserves to be rejected. It was also stated that the proposal for retrenchment was clearly in violation of section 25-g of the said act, as several juniors have been retained, whereas seniors were sought to be retrenched without any reason whatsoever. It was stated that the company was maintaining common balance sheet and profit and loss account in respect of borivli unit as well as nasik unit. It was contended that the company has not proposed any action against 102 workmen and about 55 employees in managerial category at nasik unit for voluntary retirement scheme in last three years, nor any steps have been taken for reduction of staff of that plant. On the other hand, the company has paid bonus to its employees in nasik unit. It was further stated that the real intention of the company was to enter into joint development agreement with several builders for developing plots of the factory establishment at borivli unit into a non-industrial establishment and residential units and make huge profits at the cost of the employees. It was further stated that the fact that above 600 employees have already been relieved by way of v. r. s. or by superannuation and/or death of the employee and no replacements have been made against which the company has saved substantial amount to the extent of 9 crores of rupees per annum, which information though relevant, has been suppressed. It is further stated that the alleged steps taken by the company to reduce costs does not mention any v. r. s. or sale of assets. It was further contended that the purpose of proposed retrenchment was on account of the rationalisation, standardisation and restructuring attempt made by the company and that course could be adopted only upon compliance of prior notice under section 9-a of the said act. In substance, the objection taken on behalf of the petitioner was that the smoke-screen of financial constraints projected by the company will have to be lifted, upon which it will be noticed that there was no genuine need for retrenchment.

(2.) AFTER the parties exchanged pleadings and filed submissions, the additional commissioner upon consideration of the materials placed on record proceeded to partly allow the application preferred by the company as mentioned earlier. The additional commissioner has adverted to all the materials produced on record and also the contentions raised on behalf of the parties and after analysing the same has accepted the case of the company while partly allowing the application for granting permission only in respect of 276 workmen.

(3.) AGAINST the said decision, the petitioner filed application purported to be under section 25-n (6) of the said act for review of the decision or to refer the matter of adjudication. That application has been rejected on the ground that such application could be preferred only by the workmen, whereas the same was made by two different unions. Besides, it observed that no new point was raised in the review proceedings, which warranted examination. Accordingly, the said application preferred by the petitioner for review/reference came to be rejected. Against the aforesaid decisions, present writ petition has been filed.