- (1.) THIS judgment shall govern Writ Petition Nos. 2039/91, 1415/91 and 2459/91. These three petitions have been filed at the instance of the workmen and/ or their Union challenging the common judgment passed by the Industrial Court dismissing Revision Nos. 97/90, 98/90 and 99/90 and confirming the order passed by the Labour Court by which order the Labour Court has dismissed the complaints filed by the workmen challenging the notice of retrenchment given to these workmen working with the three divisions of the Public Works Department.
(2.) SHORTLY stated, the facts are like this: The original petitioners are the Unions and the workmen. All these workmen were daily rated workmen on the establishment of Public Works department of the State of Maharashtra. It is an admitted position that though they were daily rated workers, they were being paid monthly. Their seniority list was being maintained by the p. W. D. (Public Works Department) has three divisions viz. Division No. I, Division No. II and the Integrated Medical Unit. A policy decision was taken that the workers who were employed after April 1, 1982 and those who had not completed 5 years of service should be retrenched in view of the work not being available and the workmen having become surplus. This policy decision was probably arrived at because of the introduction of Zero Budget. It was, therefore, decided that such workers who had completed five years of service should be given permanency and such who had become surplus should be retrenched. It was decided that, these workers were to be retrenched strictly following their seniority and following the principle 'last come first go'. In all 336 workers came to be retrenched by giving notice. They consisted of 292 workers of division No. I, 8 workers of Division No. II and 36 workers of Integrated Medical Unit. All those workers were admittedly working from or after April 1, 1982. All these workers came to be retrenched by giving notice. This action on the part of the respondents came to be challenged firstly under three complaints which were registered as ULP (Complaint) No. 170/87, ULP (Complaint) No. 920/89 and ULP (Complaint) No. 1151/88. It was inter alia contended in these complaints firstly that the complainant viz. Union, was a representative Union representing various workers who were the members of such Union. It was then contended that the concerned workers had completed 240 days in the last preceding year and as such were workmen within the meaning of provisions of Section 2 (s) of the Industrial Disputes Act. It was further contended that such workmen were on the technical posts like carpenter, driver, plumbers, cleaners, oilman, helper, Muster Clerks etc. Their lists were attached with the complaints. It was then contended that the decision to terminate them by notice dated January 30, 1987 was an arbitrary decision and in fact was a colourable exercise of power as in fact work was available with the government which was evident from the fact that the Government was giving work to the contractors. It was stated that there was non-compliance of the provisions of Section 25 (F), (G)and (N) of the Industrial Disputes Act, as the said notices were not in fact served to number of workers. The salaries were not paid on the date when the notices were served. In a number of cases, the compensation was also not paid on the dates the notices were served and apart from that, there was also violation of principle of 'last come first go'. It was also contended that in fact there was breach of Section 25 (N) as not one month notice but 3 months notice was required to be given and in the absence of such notice of three months, these retrenchments had become illegal and by effecting such retrenchments the employer had engaged into unfair labour practices as covered under Schedule IV, items I (a), (b), (d) and (f ). It was further pointed that in fact' these workers were governed by Kalelkar Award and since Kalelkar Award had become out-dated, a notice of 42 demands was served upon the Government and the reconciliation proceedings were also pending before the Government. It was, therefore, contended that the termination of the workers was clearly against the provisions of Section 33 (i) of the Industrial disputes Act as during the pendency of the conciliation, the workers could not be terminated or retrenched. On the basis of these complaints, notices were issued and the State-respondents appeared and raised a plea that the complaints were not maintainable. The defence raised by the respondents was that they were not acting arbitrarily in any way nor were they acting in the colourable exercise of their powers. It was submitted in the written statement inter alia that retrenchment was legal and was effected after following all the norms of law applicable in that behalf. It was denied that there was no compliance of Sections 25 (F), (G) and (N) of the industrial Disputes Act. It was also denied that the said retrenchment attracted provisions of section 33 (i) of the Industrial Disputes Act. It was denied that it was necessary to give three months notice in pursuance of Section 25 (N) of the Act. The charge that Section 25 (F) was not complied with was also seriously disputed. It was contended that the Government had laid down certain criteria and guidelines for deciding that such workmen had become surplus and, therefore, needed to be retrenched. The allegation made in the complaint that there was non-compliance of Rule 81 of the Industrial Disputes (Bombay) Rules was also traversed. It was pointed out that because of the economic scarcity austerity measures were taken and making reassessment of the available work with the Department, the real need was properly evaluated and only those workers who had become surplus were being retrenched in pursuance of a definite policy that such workers who had not completed 5 years would only be taken up for retrenchment in keeping with their seniority. The parties went to the evidence on the basis of these pleadings in all the three cases. The Labour Court framed issues to the effect as to whether the employees had become surplus and whether there was no breach of the provisions of law while retrenching the said workers. The Labour Court practically on all issues found against the workers. It found that in fact the workers had become surplus. It also went on to hold that the action in retrenching the workers was not arbitrary. It also proceeded to hold that this was not deliberate action on the part of the employer with a view to deprive the workmen of their right to get permanency. It also held that though the conciliation proceedings were pending, it did not affect the legality of the termination. On the question of applicability of Section 25 (N), it found that the same was not applicable as the provisions of Chapter VB were not applicable to the present establishment. On the question of Sections 25 (E) and (G) as also on the question of Rule 81, the Labour Court found against the workmen. In the result, it dismissed the three complaints by two separate judgments. Both the judgments are almost identical. 2a. The matters thereafter reached the Industrial Court by way of revision which were registered as Revisions Nos. 97/90, 98/90 and 99/90. All these revisions were filed by the Union as well as the workmen. They were disposed of by the Industrial Court by a common order and all the three revisions came to be dismissed by the Industrial Court. This common order is the subject matter of the present petitions before this Court.
(3.) SHRI Phadnis and Shri Kaptan appearing on behalf of the petitioners invited my attention to the order passed by the Industrial Court and the findings thereunder. The learned Counsel urged that in fact the Industrial Court has given a clear- cut finding that Section 25 (N) was applicable to the establishment, though such findings has been arrived at on the basis of the ruling of this court in Writ Petition No, 1918/87 in Amraoti District B and C Kamgar Sanghatana v. State of maharashtra, decided on October 9, 1988. It is the contention of the learned Counsel that the industrial Court had thus concluded that the whole action was illegal as retrenchment itself was in breach of the mandatory provisions of Section 25 (N), whereby not one months notice but 3 months notice was required to be given and admittedly such notices were not given. The learned counsel further contends that on that issue itself the whole retrenchment was liable to be declared illegal and the revisions were liable to allowed but the learned Industrial Court went a step further and found on technical ground that the complaints as well as the revisions before the industrial Court were not filed by proper person meaning thereby that the Union which filed these complaints and the revisions had in fact failed to prove that they were the representative of the workmen concerned and as such they had no right to prefer the complaints as well as the revisions. The learned Counsel, therefore, contends that the findings of the Industrial Court on this question is shocking in view of the fact that all the workmen who were sought to be represented by the Union have whole-heartedly supported the complaints and none has so far raised a voice that the concerned workmen were not the members of that Union or the said Union had no authority in law to represent the cause of such workmen. The learned Counsel further contends that if the finding of the Industrial Court on the maintainability of the complaints and the revisions at the instance of the Union is incorrect, then the necessary results must follow and in pursuance of the findings of the Industrial Court given on the question of Section 25 (N), the complaints will have to be allowed and the order of the Labour Court as well as the Industrial court will have to be set aside.;