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Judgment
T.S. Sivagnanam, J.—Heard Mr. P.R. Thiruneelakandan, learned counsel for the petitioner and Mr. A. Tamilvanan, learned Government Advocate for respondent Nos. 1 and 2 and Mr. Sanjay Mohan, learned counsel for M/s. S. Ramasubramaniam Associates for respondent No. 3.
The petitioner is a Trade Union, representing the employees of Hindustan Lever Factory. The prayer in the writ petition is to consider the representation of the petitioner Union dated 13.02.2009 and 20.08.2013 and pass appropriate orders invoking the powers under Section 10(3) of the Industrial Disputes Act, 1947 (hereinafter referred to the "said Act"), to prohibit the lockout (suspension of production) of the third respondent factory.
The petitioner''s case is that the third respondent who is the multi-national company was paying very meagre wage to the petitioner Union members and hence on 07.03.2008, the petitioner Union raised a demand for higher wages and other allowances. Since the same was not considered, the petitioner Union submitted a charter of demand on 18.04.2008 and raised an Industrial Dispute. The Conciliation Officer, by notice dated 21.05.2008 called upon the petitioner Union and the Management to appear before them for hearing. The conciliation proceeding ended in failure and the failure report was submitted on 27.11.2008. On receipt of the failure report, the Government of Pondicherry has referred the dispute to the Industrial Tribunal, Pondicherry and the same is numbered as I.D.(T) No. 12 of 2008 on file of the Industrial Tribunal, Pondicherry. Further, the case of the petitioner Union is that when I.D. No. 812 of 2008 was pending before the Labour Officer (Conciliation), in order to suppress the said dispute, they decided to terminate the service of all the permanent employees and replace them by casual, contract workers and also offered voluntary retirement scheme which the members of the petitioner Union refused to accept the same. The petitioner Union said to have made several complaints to the Labour Officer (Conciliation) and on the basis of the complaint, conciliation notices were issued to the petitioner Union as well as respondent No. 3. It is stated that when the dispute is pending, the Conciliation Officer suspended the production (lockout) so as to pressurize the petitioner Union members to opt for voluntary retirement scheme. Eventually, the said demand ended in failure and the Government of Pondicherry referred the matter and the same is pending in I.D. No. 3 of 2008. It is stated that pending these disputes, the petitioner made several representations and the second respondent issued a show cause notice on 09.04.2009 to the third respondent. Since no action has been taken, the petitioner Union now seeks for a direction to be issued to the second respondent to take action in accordance with law.
The learned counsel for the petitioner after referring to the factual aspects stated above, has drawn the attention of this Court to Section 10(3) of the said Act and states that it is the mandatory duty of the first respondent to consider the petitioner''s representation and having issued the show cause notice on 09.04.2009, they are bound to proceed further in the matter and take a final decision. Therefore, the learned counsel pleaded that the second respondent should be directed to conclude the proceedings.
Mr. Sanjay Mohan, learned counsel for the third respondent after referring to the factual details as set out in the counter-affidavit filed on behalf of the third respondent has submitted that the petitioner Union earlier filed W.P. No. 26180 of 2008 to direct the Secretary to the Government, Labour Department, Government of Pondicherry and the Commissioner of Labour, Labour Department, Pondicherry to initiate penal action against the third respondent for illegal lockout and its consequential of illegal closure and refer the dispute to the Industrial Tribunal, Pondicherry for adjudication. During the pendency of the writ petition, reference was made by the Government of Pondicherry to the Labour Commissioner and the terms of reference are as under:--
"a) Whether the dispute raised by the Pondicherry Hindustan Level Thozhilalar Sangam (PHLTS) against the Management of M/s. Ponds Exports Ltd. (Footwear Factory), Pondicherry over lock-out is illegal is justified or not?
b) If justified, what relief the petitioners are entitled to?
c) To compute the relief, if any, awarded in terms of money, if it can be so computed?"
In the year 2009, the petitioner Union filed W.P. No. 22319 of 2009 for direction to the Secretary to Government, Labour Department, Government of Pondicherry to refer the dispute between the petitioner and the third respondent over the transfer of entire permanent workers before the Industrial Tribunal, Pondicherry for adjudication within the stipulated time. Thereafter, in the year 2010 another writ petition being W.P. No. 399 of 2010 was filed to amend the reference of the Industrial Dispute G.O.RT. No. 30/AIL/LAB.2009 dated 24.03.2009, so as to adjudicate the dispute between the petitioner and the third respondent over the illegal closure of the third respondent''s factory. All these writ petitions were clubbed together and by a common order dated 01.12.2010, G.O.RT. No. 30/AIL/LAB.2009 dated 24.03.2009 was set aside and directed the State Government to reconsider and make appropriate reference about the actual dispute between the parties for adjudication by the Tribunal. Thereafter, the Government of Pondicherry had issued G.O. Rt. No. 83/AIL/LAB/J/2011, dated 08.04.2011 and the following dispute has been referred for adjudication.
"a) Whether the dispute rose by Pondicherry Hindustan Level Thozhilalar Sangam over transfer of 66 workmen (as mentioned in the Annexure) by the Management of M/s. Pond''s Exports Limited (Footwear Factory), Puducherry is justified? If not to give appropriate direction?
b) To what relief, the 66 workmen represented by Pondicherry Hindustan Level Thozhilalar Sangam are entitled to?
c) Whether the dispute raised by Pondicherry Hindustan Lever Thozhilalar Sangam over Closure of the Unit by the Management is legal and justified? If justified, to give appropriate directions?
d) To compute the relief, if any, awarded in terms of money, if it can be to computed?"
It is further submitted that the above reference has been taken on record in I.D. No. 3 of 2011 and it is pending before the Labour Court, Pondicherry and it has been posted for evidence of the respondents and at this stage the petitioner Union sought for reopening their side of evidence. Therefore, the learned counsel for the third respondent submitted that the relief claimed in this writ petition is already addressed in the common order passed by this Court in W.P. Nos. 26180 of 2008, 22319 of 2009 and 399 of 2010 dated 01.12.2010 wherein the respondents 1 and 2 were parties and the present writ petition is hit by the principles of res-judicata. Further, the writ petition is not maintainable since all the issues involved by the rival claims are under adjudication and any observations made by this Court will have an effect on the outcome in those proceedings.
Heard the learned counsel for parties and perused the materials available on record.
The relief sought for by the petitioner appears to be an attempt to re-open a settled issue. This issue has already been considered in the common order dated 01.12.2010 in W.P. Nos. 26180 of 2008, 22319 of 2009 and 399 of 2010 and the said writ petitions were filed by the petitioner Union herein for various reliefs. Ultimately, the Court took into consideration the plea raised by the workmen as well as the Management and allowed the writ petitions and set aside the order in G.O. Rt. No. 30/AIL/LAB/J/2009, dated 24.03.2009 and directed the Government to reconsider and to make an appropriate reference about the actual dispute between the parties for adjudication. At this stage, it will be worthwhile to refer the stand taken by the petitioner Union before this Court in the earlier round of litigation as under:--
"6. The point raised for consideration herein is as to what is the actual dispute between the management and the petitioner union referred before the conciliation officer and whether it is properly referred for adjudication before the Industrial Tribunal. The serious contention raised on the side of the petitioner union, that the production is stopped, so work is allotted to the workers remaining in service and the machineries are shifted to 3rd party companies and all the permanent workers remaining in service are transferred to outside stage are not denied on the side of the management. The management has in the counter filed herein only seek to explain the circumstances under which and the reasons for which to such situation arose.
The perusal of the records reveal that the petitioner union had repeatedly made representations to the factory manager and to the respondents 1 and 2 and other higher officials of Labour department in this regard. They started asking representation immediately after the VRS is introduced, first of it such nature its dated 29.10.2008 submitted to the conciliation officer, even in which the petitioner union has raised allegations against the management that the management has been threatening the employees who refused to accept VRS to drive them out by declaring lockout and by transferring them to northern states. It is also further stated therein, that the management has been indulging in unfair labour practise only with an intention to declare lockout. The next representation dated 06.11.2008 also contains the same allegations. In pursuance such representation the inspector of factories visited the factory premises on 06.11.2008 and found the factory to be closed without any manufacturing activity. Further representation made before the conciliation officer are on 06.02.2009 and 13.02.2009 in which the petitioner union has also raised dispute about VRS transfer and closure of the factory, the issued raised before conciliation officer in the representation dated 06.2.2009 are as follows:--
The same issues are raised in the representation dated 13.02.2009 made to commissioner of labour. The failure report of conciliation dated 20.02.2009 refers to the letters dated 29.10.2008 and 06.11.2008. The conciliation failure report does in the subject column refer to the dispute as over closure of the unit, whereas, the dispute raised by the 1st respondent for the adjudication is only over lockout and not over closure or transfer."
Further, with regard to scope of Section 10(1) of the said Act, this Court has also taken into consideration in paragraph 9 of the common order and took note of the decision of the Hon''ble Supreme Court in the case of Steel Authority of India Ltd. Vs. Union of India (UOI) and Others, and the decision in the case of Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, and also the decision in the case of Kottayam Plywood Workers Union Vs. Government of Kerala and Another, and held as under:--
"13. Thus the observation laid down by the Supreme Court and the Full Bench of Delhi High Court and the Division Bench of Orissa High Court and Kerala High Court is that the Government is before forming an opinion as to whether any Industrial Dispute is existing or apprehended or as to what is the actual dispute exists between the parties is bound to consider all the relevant facts and materials and then to form an opinion and the failure to properly exercise such power by the Government is always the subject matter of judicial review under Article 226 of the Constitution of India. That being the ratio decidendi laid down by our Apex Court, our High Court and other High Courts regarding the nature and extent of the power vested upon the government u/s. 10(1) of the Industrial Disputes Act and the manner in which the same to be exercised the core issue involved herein is to be necessarily appreciated in the light of such legal background.
As already referred to the petitioner sangam has in its representations repeatedly raised dispute not only over lockout but also over subsequent closure and illegal transfer of all the permanent employees to outside state as unfair labour practise. Though the original dispute raised is over lockout the subsequent representations filed by the petitioner sangam in the course of conciliation proceedings would reveal that the dispute involved is not that of mere lockout.
As a matter of fact, the transfer of employees is only during the pendency of the conciliation proceedings. Further, it is seriously contended by the learned counsel for the petitioner, the petitioner''s sangam expressed serious apprehension in its earlier representations as if the stoppage production and non supply of materials to the workers and the shifting of machineries to other companies for doing the job work and transfer of permanent employee is with an intention to close the factory. The Thozhilalar Sangham in its repeated representations referred to two act of commission by the management (***) thereby meaning lockout and closure in addition to transfer of employees as unfair labour practice. When, the dispute over transfer and closure is raised during the pendency of the proceedings the same is brought to the knowledge of the 1st respondent/Government through the letters dated 29.10.2008 and 06.11.2008 annexed along with the failure report and though the conciliation failure report which also refers to the same the Government ought to have considered all the material factors in the light of the records available therein and ought to have identified the actual dispute between the parties that is what the Government is legally required to do u/s. 10(1) and 12(5) of the Industrial Dispute Act. But the failure to consider the same while asking reference by the government amounts to gross failure or improper exercise of the power vested upon the Government."
Further, this Court also took note of the submission of the petitioner Union that reference has been made without taking into account all the materials placed before the same by the Conciliation Officer and the Government has lost sight of the actual existing dispute apprehended and raised by the petitioner Union over the closure and transferring the employees to outside the State. The operative portion of the order reads as under:--
"16. As rightly argued by the learned counsel for the petitioner, the Government has made the reference which is impugned herein without taking into account all the materials placed before the same by the Conciliation Officer. As a result, the Government has lost sight of the actual existing dispute apprehended and raised by the petitioner Sangam over closure and transferring the employees to outside the State.
As a matter of fact, the dispute regarding closure and the transfer of the permanent employees was also the subject matter of the conciliation proceedings, is clearly admitted by the official respondent, Secretary to Government/first respondent in W.P. No. 399 of 2010 as well as by the factory Manager on behalf of the management in the counter filed in W.P. No. 26180 of 2008 and 399 of 2010. The Secretary to Government/first respondent has in para 9 at page 3 of the counter affidavit filed in W.P. No. 399 of 2010 specifically stated that the conciliation proceedings is initiated in respect of lock out and transfer of the employees to outside State and the conciliation failure report is also made in respect of the same and the factory Manager has specifically stated in the other writ petitions about the conciliation reference over the lock out and closure. Whereas, the order of reference impugned herein does not disclose anything as to whether the Government has considered all the materials to find out the actual dispute between the parties and to make appropriate reference and failure to do so would in my view deserve interference by this Court and would render the reference to be held to be set aside as already held by the Hon''ble Supreme Court in the judgment reported in State of Bombay Vs. K.P. Krishnan and Others, with further direction issued to the Government to consider and make appropriate reference to the Tribunal for adjudication in the light of the principles already laid down and also the observation made by this Court herein.
In the result, the order of the first respondent dated 24.3.2009 in G.O. Rt. No. 30/AIL/LAB/3/2009, is set aside with further direction to the State Government to reconsider and to make appropriate reference about the actual dispute between the parties for adjudication by the tribunal in the light of the legal principles already laid down in the authorities cited herein and the observations made by this court in this order. The whole exercise shall be completed within two months from the date of receipt of copy of this order. In the event of any such reference, the Tribunal concerned shall adjudicate upon the same as expeditiously as possible not later than six months from the date of receipt of reference.
All the three writ petitions are accordingly ordered. No costs. Consequently, connected Miscellaneous Petition is closed."
It has to be noted that the show cause notice dated 09.04.2009 was very much available when this Court passed the order on 01.12.2010 in W.P. Nos. 26180 of 2008, 22319 of 2009 and 399 of 2010. Further more, all the issues now being sought to be canvassed by the petitioner were taken into consideration and an order was passed. Pursuant to which, the Government has also issued fresh order in G.O. Rt. No. 83/AIL/LAB/J/2011, dated 08.04.2011. Therefore, now to direct the second respondent to take action on the show cause notice dated 09.04.2009 would amount to virtually reviewing the order passed by this Court on 01.12.2010. Further, any direction by this Court in this writ petition would amount to interfering in the adjudication process which is now pending before the Labour Court, Pondicherry in I.D. No. 3 of 2011. Further, the petitioner Union has also been seriously contesting the matter before the Labour Court, Pondicherry and has not raised any dispute in terms of the reference made by the Government by an order dated 08.04.2011. Hence, the prayer sought for by the petitioner to direct the second respondent to take action on the show cause notice dated 09.04.2009 cannot be granted. In light of the above facts and the subsequent developments which have taken place after 09.04.2009 and the decision in the earlier writ petitions dated 01.12.2010 and also the order of reference dated 08.04.2011, the prayer sought for by the petitioner cannot be granted.
In the result, the writ petition is dismissed. However, it is open to the petitioner and the third respondent to raise all their contentious points before the Labour Court, Pondicherry in the pending dispute. Any observation made in this order will not prejudice the rights of the parties. No costs.