- (1.) THE petitioners had filed a complaint being complaint No. 564 of 1998. The case of the complainant was that the respondents were employers. As the workman engaged by the employer were not being given benefits which they were entitled to under various Labour legislation such as benefits of E. S. I. C. , Insurance and other benefits and some other benefits as set out in the plaint, the workman approached Shri. Chandrakant saya and Shri Harish Sawala, the respondent partners in order to redress their genuine grievance on several occasions. As the workman found that their genuine grievances are not being settled, they enrolled themselves with the petitioner union. The Union by its letter of 4-9-1998 raised a complaint with the office of the Deputy Labour Commissioner against the employers and requested that their genuine grievance be redressed. It is also set out that the respondent Nos. 2 and 3 are the partners of respondent No. 1. They only brought to the notice of the employers that the workmen had joined Union and requested the employers to co-operate with the Union to settle the genuine grievances of the workmen. In spite of the communication, the union did not receive any response. The employer on coming to know that the workman had joined the Union, respondent no. 2 started threatening workmen with the order of dismissal or discharge of service and further other threats. The Union placed the same on record by their complaint dated 26-9-1998 sent to the employer by registered A. D. The workmen themselves thereafter collectively informed the employer that they had obtained membership of the Union and had authorized the Union to represent them before the Management of the respondents. Various demands were served on the employer. In response, it is contended by the Union that respondent No. 2 deducted entire wages of the workman/union Member, while paying monthly wages on 4-10-1998 against advance paid to them. This was brought to the notice of the respondent No. 2 by the workmen upon which he threatened to dismiss them. The Union contends that the workmen were threatened that the gala will be sold and even legal dues which the workmen would be entitled to will not be paid to them to teach them a lesson for joining the membership of the Union. These facts were also placed on record by the Union by registered letter dated 5-10-1998. The respondent employer were called upon to desist from these unfair labour practices. No heed however, was paid and respondent No. 2 terminated services of the 17 workmen who were members of the petitioner Union without following due process of law with effect from 6-10-1998. In the complaint, it is pointed out that terminating the services without following mandatory provisions of Industrial Disputes Act, amounted to an unfair labour practice and that the employers be directed to reinstate the workmen whose names are appearing in annexure A with full backwages and continuity of service from 6-10-1998 till they allow to resume their duties by the employer. In the complaint, Union has invoked Items I (A), (B), (D) and (F) of Schedule IV of M. R. T. U. and P. U. L. P. Act, 1971.
(2.) RESPONDENT No. 2 filed reply. It was his contention that he was proprietor of respondent No. 1. It was set out that the complainant Union has wrongly imp!eaded respondent Nos. 1 and 2, as the workmen shown in list are not in the employment of respondent No. 1 and as such the respondent Nos. 1 and 2 are wrongly impleaded as party. It is then pointed out that the respondent no. 3 is a total stranger to respondent No. 1, a proprietary concern of which respondent No. 2 is a proprietor. It is also set out that the respondent No. 1 engaged eight employees in their employment and even though the provisions of e. S. I. S. Act are not applicable, they have been covered under the provisions of the Employees State Insurance Scheme. Rest of the averments have been dealt with. It is also pointed out that in the list of the workmen forwarded by the union, two workmen were working with them and the said two workmen were absent from duty with effect from 6-10-1998 for no reasons and without any explanation. The two workmen have been identified as Ishak Ahmed and suryappa Birbal. In respect of the averment in the complaint in Para 3 (a) that the employers had sister concern namely M/s Teenage Fashion, the same was denied and the Union was put to the strict proof thereof. The Union came to file rejoinder in response to the affidavit in reply. It was denied that the complaint suffers from so called misjoinder or non joinder of the parties and also that the respondent Nos. 1 and 2 had been wrongly impleaded. The Union also denied that the respondent No. 3 is total stranger. It was set out that the respondent had been looking after the management of respondent No. 1 and had given understanding to the affiant Ramesh Ramaiyya. The respondent No. 1 and M/s Dinesh Fashion are both sister concerns and the manufacturing activities of both the concerns are the same and as per instructions of respondent Nos. 2 and 3, the affiant and other co-workman whose names are shown in the Annexure A to the complaint had to work in both the units situated in Gala Nos. 39 and 48, Bismilla Building, 3rd Floor, above Pinge's Classes, opp. Rly. Station, Ranade Road, Dadar (West), Mumbai 400 028. It was also set out that respondent Nos. 2 and 3 had disclosed to the affiant and his co-workmen that they are partners of respondent No. 1 as well as M/s Teenage Fashion and all the workmen shown in the annexure A to the complaint had to work in both the units vice versa and payments of earned wages of the workmen also were being paid either by the respondent No. 2 or respondent No. 3 from time to time. It was also set out that the number of workman employed with respondent No. 1 were 35 and it was denied that the respondent No. 1 has engaged only 8 employees in their employment as alleged. It was also set out that the Annexure A to the complaint bears name of all 17 workmen who were working with respondent nos. 1, 2 and 3 as well as sister concern M/s Dinesh permanently and their services were terminated by way of victimization as they had enrolled as members of complainant Union. Considering the controversy, it is not necessary to advert to other averments.
(3.) AT the outset, it may be pointed out that apart from 8 names listed under the E. S. I. S. records, the names admittedly of Ishak and Suryappa whom respondent Nos. 1 and 2 admitted as been in employment were not included therein. The petitioner Union had examined Suryappa. In his evidence in chief he has averred that he was serving as Master with respondent No. 1. He was working with other 35 employees and that respondent Nos. 2 and 3 are partners and that he was member of the petitioner complainant. Out of the 35 employees, 17 are the members of the Union from 17-7-1998. He has averred the facts set out in the complaint and that letters of appointment were not given. He also set out that the respondent was giving work to others and the same work was going on in the place. He has produced documents about the work place. There was letters received from relatives at the address of the respondent. He also stated that he was deposing on behalf of the workman for himself and other co-workmen whose services were terminated. The matter was adjourned for cross examination of the said witness. On the next date of hearing, as contended on behalf of the petitioner Union, the representative of the employer filed an affidavit of the workman Suryappa who had been examined. In the said affidavit it is set out that suryappa had received all his legal dues till the date of his submitting the resignation and the complaint against him be dismissed. The receipt for the same dated 21-3-2000 was also annexed. The said witness was not made available for cross-examination. Respondent Nos. 1 and 2 thereafter on 14-3-2001 moved an application setting out that they have disputed the employment of the persons listed in the complaint and as such unless there is pre-adjudication on this issue of employment by the appropriate authority, the complaint filed by the complainant above named cannot be said to be maintainable. Reply was also filed on behalf of the petitioner Union. It was set out that respondent No. 3 was not stranger to respondent No. 1. They relied on the visiting cards given by the respondent to the workmen which have been filed on record in the list of document dated 13-1-2000 at Sr. No. 40 and 48. It will show that the respondent was carrying on business at the address. Several letters were received by the respondent written by the complainant. The names of both respondent Nos. 1 and 2 have been mentioned. But the same was not disputed at any point of time by respondents prior to termination of the services of the workmen. Attention was also invited to the letters produced which were on record which were addressed to the workmen at the address set out in the complaint. It was also pointed out that names of Ishak and Suryappa were not in the list included in Form No. 6 or E. S. I. C.;