- (1.) THE petitioner is a representative and approved union for the local area in the respondent No. 1 undertaking under the provisions of the Bombay Industrial Relations Act (hereinafter referred to as "the Act" ). The petitioner union has challenged the ad interim order dated 19th October, 2000 passed by the learned member of the Industrial Court Exhibit UT filed by the petitioner for certain interim orders in its complaint of unfair labour practices filed by it under the M. R. T. U. and P. U. L. P. Act, 1971 under Items 5, 9 and 10 of Schedule IV of the Act. The complaint of the petitioner union is that the respondent No. 1, company has failed to implement the settlement dated 28-1-2000. The main grievance of the petitioner union appears to be that the respondent company has committed an illegal change contemplated under section 46 of the Act read with section 42 and Items 1, 2 and 4 of Schedule II of the said Act. In the complaint, there are other issues which are yet to be decided by the Industrial Court and therefore, they are kept open. The only point which I am called upon to decide is whether the respondent company is required under section 42 (1) of the Act before reducing or increasing the number of posts or persons employed in the managerial, administrative, supervisory or technical capacity category who do not fall within the definition of "employee" given by the Act. According to the petitioner union even if the respondent company wants to reduce or increase the posts/persons in the aforesaid categories drawing basic pay exceeding Rs. 1000/- per month as contemplated by the definition of employee given in section 3 (13) of the Act it must comply with section 42 (1) of the Act. According to the interpretation of the union, the following two items of Schedule II include even the aforesaid categories of the persons employed in the aforesaid posts in the establishments or undertaking. 1. Reduction intended to be of permanent or semi permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure. 2. Permanent or semi permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments. 3. Shri Shetty, the learned Advocate for the petitioner union has submitted that the aforesaid items have deliberately used the word "persons" and not employees and, therefore, a wider interpretation has to be given so that the posts in the managerial, administrative, supervisory or technical capacity would be included for the purpose of giving a notice of change under section 42 (1) of the Act. (for the purpose of brivity, the aforesaid categories would be referred to hereinafter as the category of "non Employees". ).
(2.) ACCORDING to Shri Shetty, if the management or the employer desires to increase or reduce the number of posts/persons employed in the aforesaid categories, a notice of change under section 42 (1) of the Act is obligatory and any change effected by the employer without giving such notice of change would amount to an illegal change under section 46 of the Act and also an unfair labour practice under Item 9 of Schedule IV of the M. R. T. U. and P. U. L. P. Act. He has strenuously submitted by pointing out certain sections from the Act that the legislature has used the words "person employed" wherever required for definite purpose to enlarge the scope of the items. Shri Shetty has pointed out that in the schedule the words are "in the number of persons employed" and therefore, the person would include not only persons employed in the employee category but also "non employee" category. According to him, therefore, the respondent company has reduced the number of persons holding the posts of "employee" categories and by reclassifying them as the employees in to the managerial etc. category. Without notice of change under section 42 (1) it has committed an illegal change and an unfair labour practice as aforesaid. Shri Shetty has further submitted that even increase in the number of persons employed or to be employed in such "non employee" category in violation of section 42 (1) also amounts to an illegal change and an unfair labour practice. Shri Shetty has submitted that the respondent company has committed an illegal change and unfair labour practice in reducing the number of persons/posts of employee category by reclassifying them in the "non employee" categories and as a result it has increased the number of persons/posts in the "non employee" categories. Both these changes are effected by the respondents company without following the mandatory provisions of section 42 (1) of the Act.
(3.) IT would be relevant to mention at this stage itself that the respondent company has re-classified about 115 employee in accordance with the settlement at the request of the employees in writing to consider applications for re-classification and the respondent company accordingly acted as per its organisational requirements and at its discretion. It is an agreed term of the settlement that the posts held by the concerned employees who are reclassified will not be filled in, meaning thereby that the number of such persons employed will stand reduced by specific agreement.;