Radheshyam Chhatrapal - Petitioner @HASH Anil Synthetics (Unit of Kanoria Chemicals and Industries) and 1

Mr. K.M. Thaker, J.(Oral) - The petitioner in SCA No.18319/2003 has challenged the common judgment and order dated 30.8.2003 passed by the learned Industrial Court in Appeal (IC) No.129 of 2002 and Appeal (IC) No.130 of 2002. So far as SCA No.18319/2003 is concerned, it is confined to Appeal (IC) No.129 of 2002, wherein SCA No.18031/2003 is confined to Appeal (IC) No.130 of 2002.

By the said common judgment and order dated 30.8.2003, the learned Appellate Court allowed the said two appeals which were filed by present respondent company. By the judgment and order dated 30.8.2003, the learned Appellate Court (learned Industrial Court) set aside the judgment dated 21.10.2002 passed by the learned Labour Court in T Application No.157 of 1992 and T Application No.158 of 1992 which were filed by present petitioners.

In view of the fact that the learned Industrial Court decided said two appeals by common judgment and order and also having regard to the fact that the learned Industrial Court also passed common judgment and order in respect of two applications filed by the workmen and also considering that the facts involved in two cases are almost similar and learned advocates for the contesting parties have made identical submissions in respect of both the matters, the captioned two petitions are decided by this common judgment.

So far as the facts involved in these two cases are concerned, it has emerged from the submissions by learned advocates and from the record that two petitioners in the captioned petitions were employed as workmen in the respondent company. It appears that as part of its restructuring the petitioner company desired to implement certain changes in the machineries/manufacturing process and therefore, it entered into an agreement with representative union in the industry and local area. The agreement was entered into and executed on 10.1.1992. One of the conditions in the agreement enabled the company to reduce the strength of the Department and for that purpose, it provided that the workmen who are ready and willing to tender their resignations would submit their resignations through the representative union and the company can reduce corresponding number of persons and posts (i.e. corresponding to the number of resignations which may be received through the representative union) from concerned department. It was also agreed that the workmen will be entitled to receive salary and other benefits upto the date when their resignations are accepted by the company.

4.1 The two petitioners, who were, at the relevant time, working as Weavers, had, according to the company, tendered resignations on 1.2.1992 which was informed to the company by Registered Post dated 8.2.1992. According to the workmen, the respondent company did not act in accordance with the terms and conditions of the agreement. It is the case of the workmen that the respondent company did not pay the benefit in accordance with the agreement and did not communicate acceptance of the resignation as contemplated by the agreement to the representative union. The claimants � workmen further alleged and claimed that they had addressed a letter on 11.2.1992 to the representative union and had withdrawn their resignations on the ground that they were not paid benefits in accordance with the terms of the agreement. The workmen also claimed that after forwarding the letter dated 11.2.1992 to the representative union, they had forwarded notice (approach letter) in accordance with section 42(4) of the Bombay Industrial Relations Act (''BIR Act'' for short) on 24.2.1992. The workmen admitted that they had received a reply dated 26.2.1992 from the company in response to the approach letter dated 24.2.1992, however, the reply by the company was, according to the workmen, vague and therefore not acceptable to them. With such allegation, the workmen filed Application Nos.157/92 and 158/92 before the learned Labour Court and demanded that the action and the decision of the company of not accepting the withdrawal of resignation should be declared illegal and the company should be directed to pay wages and all other benefits for the intervening period. The said claims and allegations by the workmen were disputed and denied by the company. In its written statement, the company claimed that the claimants � workmen had tendered their resignations on 1.2.1992 and the acceptance was conveyed to the workmen who refused to accept the communication. It was also claimed by the company that the communication accepting the resignation was forwarded to the representative union as well. The company claimed that the workers were asked to collect their dues/wages from the company but the workmen � claimants had refused to collect their dues. The company also claimed that it had also put up a notice dated 30.12.1991 regarding allotment of alternative work to the workmen and a copy was also forwarded to the representative union, however, the workmen � claimants had not accepted the said alternative also and that, therefore, there was no justification in the claim and the dispute raised by the workmen.

4.2 After hearing the submissions by learned advocates for the contesting parties and upon taking into account the material available on record, the learned Labour Court passed the judgment and order dated 21.10.2002 whereby the learned Labour Court allowed the said two applications.

4.3 Feeling aggrieved by the said common judgment dated 21.10.2002 in T Application Nos.157 of 1992 and 158 of 1992, the opponent company i.e. present respondent filed above mentioned two appeals before the learned appellate court. The learned appellate court heard the appeals and disagreed with the judgment passed by the learned Labour Court. Consequently, the learned appellate court allowed the appeals and set aside the judgment by the learned Labour Court. Aggrieved by the said decision by the learned industrial court in appeal Nos.129 of 2002 and 130 of 2002, the claimants/workmen have taken out these petitions.

4.4 Before proceeding further, it is relevant to mention that during the hearing of these petitions, learned advocate for the petitioner submitted that the company is closed since March 2002. He also submitted that without prejudice to its contentions and only with a view to ensuring that the litigation comes to a final end so that the company which is closed may not have to continue to prosecute the litigation, an offer for full and final settlement was made whereby the company had agreed to pay Rs.62,000/- and Rs.50,000/- to the concerned two workmen as full and final settlement. However, the workmen refused to accept the said amount.

In this backdrop, I have heard learned counsel for the petitioner workmen and the respondent company. I have also considered the material on record and impugned orders and the orders by learned Labour Court.

Mr. Acharya, learned advocate for the petitioner workmen, submitted that the workmen had withdrawn the resignation before the resignation was accepted by the company. He further submitted that the company did not act in accordance with the terms of the settlement and the company also did not make payment of wages and other benefits as per the agreed terms of the settlement and that therefore, the workmen were not inclined to continue their resignations and consequently, they had forwarded written intimation to the union and they had withdrawn their resignation and that therefore, the workmen should be treated as in employment and consequential benefits should be paid to the workmen.

Per contra, Mr. Chauhan, learned counsel for the respondent, submitted that the learned Labour Court had failed to appreciate that the workmen had voluntarily tendered resignation in view of the agreement arrived at with the representative union. He further submitted that the resignation was forwarded to the company by the representative union and the workmen had tendered their resignation through the union which was accepted by the company and that therefore, the workmen are neither justified nor correct in alleging that the resignation was not accepted and/or in claiming that they had withdrawn the resignation. Learned counsel for the respondent company submitted that until the respondent company accepted the resignation and prepared the cheques for the amount to be paid to the workmen, any intimation conveying withdrawal of the resignation was not received by the company. Learned counsel for the respondent company submitted that the respective cheques for the amount payable to the concerned two workmen were forwarded to the concerned workmen by registered post on 8.2.1992 and until that date, any intimation from the workmen about alleged withdrawal of the resignation was not received. Learned counsel for the respondent also relied on two statements which reflect the calculation of the amount which was forwarded (by way of cheque) to the concerned workmen towards payment in accordance with the terms of the settlement. He relied on the said submission to support his contention that the bills for payment would be prepared and amounts were forwarded to the workmen.

It is not in dispute that the company had entered into an agreement with the representative union and the said agreement provided for reduction in number of persons and posts in the respondent company.

8.1 It is also not in dispute that according to the settlement with the representative union, the company was permitted to reduce the strength of persons and posts corresponding to the number of resignations which may be received by the company through the union.

8.2 It is also not in dispute that the claimants i.e. the concerned workmen had tendered resignations in pursuance of the agreement between the company and the representative union and their resignations were forwarded to the company by the representative union.

8.3 It is also not in dispute that the workmen had submitted their respective resignations to the representative union on 1.2.1992. It is also not in dispute that the union had in turn forwarded such resignations to the company.

8.4 Before the learned Labour Court, the workmen claimed that they had withdrawn the resignation vide intimation dated 11.2.1992 which was submitted to the representative union.

8.5 From the said claim and allegations by the workmen, it becomes clear that the workmen had not submitted the intimation of their alleged decision (i.e. about alleged withdrawal of the resignation) to the company before company accepted the resignation and conveyed the acceptance on 11.2.1992.

8.6 It is also not in dispute that the company had displayed a notice informing the workmen that those workmen who did not tender resignation in pursuance of the agreement with the union will be provided alternative work in another department.

8.7 From above mentioned facts and details, it becomes clear that even the workmen did not dispute that they had submitted the resignations through the union. The dispute is, thus, as to whether the resignations were actually withdrawn by the workmen and if the workmen had withdrawn the resignations, whether they had withdrawn the resignations before the company accepted the resignation and acted upon the resignations and paid/offered the amount payable as per the agreement.

8.8 It is pertinent to mention that even the learned Labour Court has observed/recorded in the judgment that, "...even without going to the controversy as to whether the attendance card were issued, it remains undisputable that the applicants were required to work in other department and the management was agreeable to take them back as they had not resigned on 31.1.1992...." Thus, the claim of the company that it had offered alternative work to the concerned workmen along with other workers since the department was closed down is taken note of and recorded by the learned Labour Court as well.

In this context, it is relevant to note that there is no evidence on record that the workmen had asked for alternative work in any other department and/or they were ready and willing to accept alternative work in other department. The learned Labour Court failed to take into account the fact that the claimants could not establish that though they were willing to accept alternative work, the company did not provide them alternative work. This aspect/fact is noticed by the Industrial/Appeal Court from the material available on record.

9.1 The learned Labour Court decided the two applications on the premise that if the resignations were submitted to the representative union, then, its acceptance should have been conveyed to the concerned workmen through representative union. The learned Labour Court also proceeded on the premise that the workmen had withdrawn the resignation vide letter dated 13.2.1992 and even the representative union had requested the company to allow the workmen to withdraw the resignation as per their request in the letter dated 13.2.1992.

9.2 However, the learned Labour Court seems to have overlooked the fact that according to the company, the resignations were accepted vide order/decision dated 8.2.1992 and even the bills/vouchers for payment of the amount in accordance with the settlement with the union were prepared.

9.3 The learned appellate court examined the said judgment by the learned Labour Court and noticed the errors in the judgment. The learned industrial court took into account the allegation of the workmen that they had submitted their request/intimation for withdrawal of the resignation on 11.2.1992. Having taken into account the said allegation by the workmen, the learned industrial court has, then, recorded, on examination of the material on record that the workmen failed to establish that they had submitted an application to the company on 11.2.1992. The learned Labour Court, on examination of the record, has observed in the judgment that there is nothing in the communication of the union which would convey that the workmen desired to withdraw the resignation and had conveyed such decision to the union or to the company.

9.4 Thus, from the record of the case and from the decision by learned industrial court, it comes out that the claimants/workmen failed to establish that the company had not accepted their resignation and/or that before the resignations were accepted, they had conveyed their decision to withdraw the resignations.

From the list of the documents filed by the respondent company before the learned Labour Court, it appears that the respondent company had placed on record communication dated 8.2.1992 whereby it conveyed the acceptance of resignation, however, the learned Labour Court seems to have lost sight of the said communication.

In this view of the matter, any ground to interfere with the decision by the learned industrial court is not made out.

When the fact that the resignations were tendered by the workmen in pursuance of the agreement with the representative union and the fact that pursuant to the agreement with the union entire department is closed down and subsequently, even the company is closed down (i.e. manufacturing activity of the company are discontinued in totality) and that there is no material on record to establish that the workmen had withdrawn the resignation before the resignation were accepted and acted upon by the company, the decision by the learned industrial court cannot be faulted.

The learned counsel for the workmen has failed to show any material from the record or any error from the judgment of the learned industrial court which would convince this court to take different view from the decision of the learned industrial court and/or to restore the decision of the learned Labour Court.

Apparently, the learned Labour Court did not take into account certain relevant facts and certain documents on record and proceeded on erroneous premise.

In this view of the matter, the decision of the learned industrial court cannot be faulted. The petition fails and deserves to be rejected.

9.5 However, before concluding this decision, it is necessary and appropriate to mention that during the hearing of these petitions, learned counsel for the respondent was asked to inquire from the company as to whether the company is ready and willing to honour its earlier offer/commitment (i.e. pay the amounts to the workmen) or not.

Initially, learned counsel for the respondent company, after taking instruction from competent officer, submitted that whatever amount was payable to the workmen as per the terms of the settlement was offered to the workmen at the time when their resignations were accepted and the same can be paid to the workmen and the company is ready to pay such amount.

This would translate into the fact that the company was ready to pay Rs. 63,360/- to Mr. Radheshyam Chhatrapal and Rs. 50,688/- to Mr. Fatesinh Ulfasingh.

However, having regard to the fact that long time has passed since the said payment was offered (which was not accepted by the workmen), the court inquired as to whether the company will pay some additional amount to the concerned workmen or not. After inquiry with the competent officer, Mr. Chauhan, learned counsel, submitted that if the workmen are ready and willing to accept the amount towards full and final settlement of all claims, dispute, rights, etc., the company is ready to pay Rs.1 Lakh to each claimant.

However, learned counsel for the petitioner workmen informed the court that the workmen are not inclined to and have refused to accept the said amount as full and final settlement (despite the fact that not only the department, but entire manufacturing activity of the company and even the company is closed down).

9.6 In this view of the matter, the court is of the opinion that the company should be bound by its offer for some reasonable time and the window for the workmen to accept the said offer of the company should be kept open for some time.

Therefore, while concluding present petition, this court deems it appropriate to direct the company to keep the offer open for the period of two months from the date of receipt of certified copy of this judgment.

On this count, it is clarified that if the concerned workmen submit written application, directly or through learned advocate, and convey their decision to accept Rs.1 Lakh in full and final settlement of all claims, disputes, demands, rights, etc. within period of two months from the date of receipt of certified copy of this judgment, then the company will accept the said intimation and it shall pay Rs.1 Lakh to the workmen (i.e. the workmen who conveys his decision to accept the said amount towards full and final settlement) within 4 weeks from the date when it receives such intimation.

With aforesaid observations, directions and clarifications, present petitions are rejected. Rule is discharged.

Petitions rejected with observations, directions and