P M GHARE Vs. JAYSYNTH ANTHRAQUINONE LTD

JUDGEMENT

(1.) These two Civil Applications in the two Appeals are filed by individuals who are employees of the 1st respondent-Company. Through these Civil Applications, leave is sought to file and prosecute the two letters Patent Appeals. The applications have become necessary since the applicants are desirous of challenging the common order passed by a learned single Judge (Dr. D. Y. Chandrachud, J. ) in two writ petitions viz. Writ Petition no. 3641 of 2003 and Writ Petition No. 3462 of 2003 wherein the applicants were not parties. A Trade Union by name Association of Chemical Workers represented these workmen along with other workmen totalling to about 538 who were employed by two sister Companies. The Companies are respondent no. 1 in both these Civil Applications and the above Union is respondent No. 2. The learned Single Judge passed a common order dated 30th June, 2004 on Civil Applications Nos. 541 and 542 of 2004 taken out in both these Writ petitions by the said Union which sought to recall the order that he had passed earlier on 3rd October 2003. The learned Judge rejected those Civil applications by the impugned order dated 30th June 2004. The learned Judge recorded in that order that a settlement had been arrived earlier between the two Companies and the said Union though formal consent terms were yet to be placed before him. He had recorded the fact of this settlement in his earlier order of 3.10. 2003 of which the review was sought. He held that the settlement which was arrived at and mentioned in his order dated 3rd October 2003 was binding and executable. It is this order passed on 30th June 2005 which is under challenge in the Appeals. It is material to note that the Union which was the respondent to the said Writ Petitions had filed these two Civil application Nos. 541 and 542 of 2004 to recall the order dated 3rd October 2003. The Union has not chosen to challenge this order dated 30th June 2004 rejecting both these Civil Applications.

(2.) Mr. Bharucha, learned Counsel appearing for the applicants, submitted that the order passed on 3rd October 2003 could not be said to be recording the fact that a settlement had been arrived at between the parties. He submitted that all that is stated in that order is that the petitioners before the learned single Judge i. e. the two Companies had agreed to pay a total sum of Rs. 6.67 crores in full and final settlement of all the claims of the workmen. However, the very paragraph recorded that formal consent terms were to be placed before the Court. Firstly, he submitted that the learned Single Judge was not correct in coming to the conclusion later-on that an executable order had been passed on 3rd October 2003. The second submission of Mr. Bharucha was that all that is stated in that particular paragraph in the order dated 3rd october 2003 was about all the claims, dues and outstanding amounts. Nothing was stated about the right of employment of the workmen concerned and, therefore, the settlement was not acceptable to the workmen who have filed these Civil Applications and they should be allowed to agitate the same. If this settlement meant giving up the right to employment, it amounted to contracting out of section 25-O of the Industrial Disputes Act, 1947 which was otherwise applicable since the workmen employed in the concerned Companies were more than 100. In this behalf, Mr. Bharucha relied upon a judgment of the apex Court in the case of (Oswal Agro Furance Ltd. and anr. v. Oswal Agro furance Workers Union and ors. ) , reported in (2005) 1 C. L. R. 816 to submit that such a contracting out and the settlement resulting therefrom is bad in law.

(3.) Before we appreciate the submissions of Mr. Bharucha, we have to note that these two Writ Petitions which came up before the learned Single Judge were arising out of an order on a Complaint under section 28 of the Maharashtra recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, ("m. R. T. U. and P. U. L. P. Act, 1971" in short). This Association of Chemical workers had filed those two Complaints bearing Nos. 541 and 540 of 2001 before the Industrial Court at Thane. The prayer in these Complaints was to declare the lock-out effected by the Managements to be bad in law and give consequential benefits to the workmen. The Industrial Court did hold in favour of the workmen that the lock-out was bad in law and directed that the management should re-engage the workmen concerned. The Industrial Court held that the lock-out was not bona fide and the same was sham and bogus and, therefore, in paragraph 25 (4) of its order, the Industrial Court directed both the Companies to allow the concerned employees to report for duty and provide them work and wages as usual. It is this order passed on 23rd March 2003 which was under challenge in both these Writ Petitions. The submission of Mr. Bharucha was that the so-called settlement recorded in the order of Single Judge on 3.10. 2003 cannot be said to be a settlement and in any case it was bad in law since it amounted to contracting out. Therefore, in his view, the learned Single Judge committed an error of law in declining review on 30. 6.2004.