- (1.) The appellant-Company has questioned the correctness of the judgment and order dated 5.05.2006 passed in L.P.A. No. 141 of 1996 in Writ Petition No. 2733 of 1996 by the Division Bench of the High Court of Judicature at Bombay, affirming the Award dated 08.03.1996 of the Industrial Court, Mumbai in Complaint (ULP) No. 1081 of 1992 raising certain questions of law and urging various grounds in support of the same and prayed to set aside the impugned judgment, order and award of the Industrial Court.
(2.) The relevant facts are briefly stated to appreciate the rival legal contentions urged on behalf of the parties in this appeal. The appellant-Company was engaged in shipping business from its premises at Mackinnon Building, Ballard Estate, Mumbai. The activities were divided into ship agency, shipping management, ship owning and operating, travel and tourism, clearing and forwarding, overseas recruitment and property owning and development. It had approximately 150 employees who were all workmen and members of the respondent-Union. The respondent-Union is registered under the provisions of the Trade Union Act, 1926. A letter dated 27.07.1992, purportedly a notice of retrenchment together with the statement of reasons enclosed therewith was served upon approximately 98 workmen by the appellant-Company stating that the same will be effective from closing of business on 04.08.1992. In the statement of reasons, it was stated that the appellant-Company was accumulating losses and the proprietors had taken a decision to rationalise its activities apart from the property owning and development department, a portion of the clearing and development business relating to contracts with the Government of India, Institutions such as, Central Railway and Lubrizol India Ltd. The respondent-Union who are the concerned workmen filed the complaint before the Industrial Court. Since there was a deviation from the seniority list of some workers in the clearing and forwarding departments and some of the remaining workers from the alleged closed departments of the appellant- Company were to be transferred to the aforesaid retained departments of the appellant-Company, a seniority list of all the workmen in the establishment was also allegedly put up on the notice board. However, the finding of fact recorded by the Industrial Court while answering the relevant contentious issues is that this plea taken by the appellant-Company was not proved.
(3.) Aggrieved by the said action of the appellant-Company, the concerned workmen of the respondent-Union filed a complaint before the Industrial Court at Mumbai alleging the unfair labour practices on the part of the appellant-Company in not complying with certain statutory provisions under item No. 9 of the Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "MRTU & PULP Act"), in proposing to retrench the concerned workmen. It has assailed the legality and validity of the notice of retrenchment served upon the concerned workmen by the appellant-Company. The legal contentions urged by the workmen in the complaint were as follows: (i) That the notice was defective in as such though one month's salary in lieu of notice was offered, current month's salary was not offered to be paid and was not included in the cheques which had been given to the workmen. Thus, the condition precedent under Section 25F of the Industrial Disputes Act (for short the I.D. Act) is not complied with. Further the said notice did not indicate that notice in the prescribed form has been sent to the State Government or the authorities specified under Section 25F. (ii)That no list of seniority of workmen in different categories from which retrenchment was contemplated had been put up on the notice board as mandatorily required under Rule 81 of the Industrial Disputes (Bombay) Rules, 1957 (for short 'the Bombay Rules'). (iii)That in the statement of reasons, assuming without admitting the same, that the activities of the appellant-Company had to be rationalised, this directly led to the retrenchment of workmen. However, there is an admitted decrease in the number of employees to be employed in different department which are under the control of the appellant-Company. This directly attracts items Nos. 9 and 10 of Schedule IV of the I.D. Act. Thus a notice under Section 9A of the I.D. Act was bound to be given. This has not been done. (iv)That the appellant-Company was bound to give notice at least 60 days before the intended closure to the State Government, this has not been done. Therefore, Section 25FFA of the I.D. Act has not been complied with by the appellant-Company. (v)That in the seniority list prepared and relied on by the appellant- Company large number of employees who are not junior must have been retrenched. Therefore this is in violation of the provision under Section 25G of the I.D. Act.;