UNITED WHITE METALS LIMITED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these Petitions raise common issues of fact and law and therefore can be conveniently disposed of together. The challenge in the two Petitions is directed against the Order dated 22 December 2006 passed by the Joint Commissioner of Labour, Mumbai, referring under Section 12(5) of the Industrial Disputes Act, 1947 ("said Act"), a dispute with the following terms of the reference:

(2.) The brief facts and circumstances in which the challenge arises is that the 252 employees referred to in the list annexed to the Order of Reference dated 22 December 2006 ("impugned order") were admittedly the employees of M/s. Otis Elevator Co. (I) Ltd., (hereafter referred to as "the Otis") at least upto 29 December 2003. On and from the said date, the services of such employees were purported to be transferred on "as is where is basis" to M/s. United White Metals Limited (hereafter referred to as "the UWML"). At the time of such transfer, there were two Unions viz. Bharatiya Kamgar Karmachari Mahasangh ('BKKM') and Bhartiya Kamgar Sena ('BKS') operative against the employees. The BKKM filed Complaint (ULP) No. 11 of 2004 and BKS filed a Complaint (ULP) No. 181 of 2004 under the provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('MRTP & PULP Act') alleging that the transfer is illegal, null and void and constituted an unfair labour practice. Both, Otis and UWML questioned the jurisdiction of the Labour Court to entertain such Complaints, inter alia on the ground that there was a serious dispute as to whether the employees could be said to be employed with Otis or UWML and that such a dispute could never be adjudicated in exercise of summary proceedings under the MRTP & PULP Act. In the alternate, Otis and UWML also urged that the employees in question had accepted the transfer without any demur, and consequently there was no unfair labour practice involved. The Labour Court, by its common judgment and order dated 30 August 2005 observed that the transfer of the employees was with their consent, but ruled that it did not have jurisdiction to entertain the Complaints, as there was a serious dispute as to whether the employees were employed with Otis or UWML. Thus, in effect the jurisdictional objection raised by Otis and UWML was upheld by the Labour Court and the two Complaints, dismissed for want of jurisdiction.

(3.) By order dated 17 September 2004, the Specified Authority under Section 25-N of the said Act permitted retrenchment of 116 employees out of the 235 purportedly transferred from Otis to UWML. Pursuant to the same, 116 employees were retrenched by UWML. The two Unions applied for a review. The review was rejected but the dispute was referred for adjudication to the Industrial Tribunal. At the stage when the parties appeared before the Industrial Tribunal, period of one year as prescribed under Section 25-N(5) had concluded, and therefore Otis and UWML, by applications urged for disposal of the Reference, as having become redundant. Such applications were rejected by the Industrial Tribunal by its order dated 8 December 2005. UWML preferred Writ Petition No. 838 of 2006 questioning the order dated 8 December 2005, which Petition was allowed by the learned Single Judge of this Court by its judgment and order dated 3 April 2006. The Appeal against the same being Appeal No. 892 of 2006 was dismissed by the Division Bench of this Court by judgment and order dated 5 March 2007.