1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.316 OF 2008
IN
WRIT PETITION NO.1304 OF 2008
1. Nicholas Piramal India Limited, )
having its registered office at Nicholas )
Piramal Tower, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
2. Mr. Ajay Piramal, Chairman, )
Nicholas Piramal Tower, )
Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
3. Mr. D.B. Shelatkar, )
General Manager - HRD, )
Haemmaccel Plant, )
M/s.Nicholas Piramal India Ltd., )
L.B. S. Marg, Mulund (W), )
Mumbai - 400 080. )
4. Mr. A.B. Khot, )
GM Mfg. Operations (Haemaccel) )
M/s.Nicholas Piramal India Ltd., )
L.B. S. Marg, Mulund (W), )
Mumbai - 400 080. )
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5. Mr. Adhir Mane, )
Vice President H.R.,
M/s.Nicholas Piramal India Ltd., )
Ganpatrao Kadam Marg, Lower Parel, )
Mumbai - 400 013. ).. Appellants
Versus
Nicholas Employees Union, )
Having its Office at 48, Chanchal Smriti, )
Katrak Road, Wadala, )
Mumbai - 400 031. ).. Respondents
--
Shri J.P. Cama i/by Haresh Mehta & Co. for the Appellants.
Shri Arshad Shaikh i/by Shri Piyush Shah for the Respondents.
—
ALONG WITH
APPEAL (L) NO.430 OF 2008
IN
WRIT PETITION NO.1304 OF 2008
&
WRIT PETITION NO.3505 OF 2008Nicholas Employees’ Union, )
Having its Office at 48, Chanchal Smriti, )
Katrak Road, Wadala, )
Mumbai – 400 031. ).. Appellants::: Downloaded on – 09/06/2013 13:54:24 :::
3Versus
1. Nicholas Piramal India Limited, )
having its registered office at Nicholas )
Piramal Tower, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai – 400 013. )2. Mr. Ajay Piramal, Chairman, )
Nicholas Piramal Tower, )
Ganpatrao Kadam Marg, )Lower Parel, Mumbai – 400 013. )
3. Mr. D.B. Shelatkar,
General Manager – HRD,
Haemmaccel Plant,
)
)
)M/s.Nicholas Piramal India Ltd., )
L.B. S. Marg, Mulund (W), )
Mumbai – 400 080. )4. Mr. A.B. Khot, )
GM Mfg. Operations (Haemaccel) )
M/s.Nicholas Piramal India Ltd., )
L.B. S. Marg, Mulund (W), )
Mumbai – 400 080. )5. Mr. Adhir Mane, )
Vice President H.R.,
M/s.Nicholas Piramal India Ltd., )
Ganpatrao Kadam Marg, Lower Parel, )
Mumbai – 400 013. ).. Respondents—
Shri Arshad Shaikh i/by Shri Piyush Shah for the Appellants.
Shri J.P. Cama i/by Haresh Mehta & Co. for the Respondents.
—
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4CORAM : SWATANTER KUMAR, C.J. &
A.P. DESHPANDE, JJUDGMENT RESERVED ON : 16TH SEPTEMBER, 2008.
JUDGMENT PRONOUNCED ON : 25TH SEPTEMBER, 2008.
JUDMGNET : ( PER SWATANTER KUMAR, C.J. )
1. The Appellant is a Limited Company engaged in the
business of manufacturing and marketing of pharmaceutical products.
In the year 1988, Nicholas Laboratories India Limited was taken over
by the Piramal Group. They are having manufacturing plants at
Thane, Mahad in Maharashtrashtra, Pithampur in Madya Pradesh,
Baddi in Himachal Pradesh, Digwal in Andhra Pradesh and Ennore in
Tamil Nadu. The Appellant Company acquired the Plant at Mulund
on 7th February, 2000 and wanted to expand its business in the field
of manufacturing. The Company wanted to start manufacturing of
Haemaccel which is a large volume parental product and a life saving
drug and therefore, transferred certain workmen from its erstwhile
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5Deonar establishment which had become an unviable unit on a
stand-alone basis. The order of transfer was challenged by the
workmen by filing a complaint under the Maharashtra Recognition of
trade Unions and Prevention of Unfair Labour Practices Act, 1971
before the Learned Industrial Court, Mumbai, being Complaint (ULP)
No.172 of 2000. The workmen did not report for work at Haemaccel
Plant between the period from 7th February, 2000 to 20th September,
2000. It was only after the High Court had passed an order that the
workmen reported to their duty at the transferred place. The Company
on account of business necessities decided to shift its Haemaccel
Plant from Mulund, Mumbai to Baddi in the State of Himachal
Pradesh in the year 2008. Discussions were held with the
representatives of the Union on the subject matter of shifting of the
said plant and prior to holding of meetings with the Union, the
Appellant addressed a letter dated 14th February, 2008 to the Union
pointing out the exigencies and the necessities which required the
Appellant to shift its plant from Mumbai to Baddi in Himachal Pradesh.
On 25th February, 2008 individual letters of transferss were issued to
the employees and they were informed that due arrangements in
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6respect of their transfer from Mumbai to Baddi, as well as the
arrangements for providing them shared accommodation for a period
not exceeding 30 days from the date of reaching Baddi establishment
will also be made.
2. It is the case of the Company that transferability of the
employees is an express condition of service and also an established
practice in the Appellant company. The Company had a right to
trasnfer its employees from one establishment to another in terms of
Clause 8 of the Letter of Appointment issued by the Company to
these employees.
3. On or about 11th March, 2008, 26 employees filed a
Complaint of unfair labour practices before the Industrial Court,
Mumbai, being Complaint (ULP) No.118 of 2008, inter alia,
challenging the action of the transfer of 26 workers from Mumbai to
Baddi. An application for interim order was also filed praying that the
order of transfer should be stayed as well as the Company should be
restrained from moving, selling, alienating or disposing of the plant
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7and the machinery from the Haemeccel Plant at Mumbai. These
prayers in the application and the Complaint were resisted by the
Company by filing detailed statement and also requisite documents.
4. After hearing the parties concerned, the Industrial Court
vide its order dated 5th May, 2008 directed that pending the
determination of the complaint, the Company shall accommodate
and/or absorb the seven employees at Sr.Nos.1 to 7 in Exhibit-A of
the Complaint, in the establishment of Mumbai, Thane Region.
5. Aggrieved by the said order, the Company filed the Writ
Petition before this Court being Civil Writ Petition No.3505 of 2008.
The said Writ Petition came up for hearing before the learned Single
Judge. The workmen through their Union also filed a Writ Petition
being Writ Petition No.1304 of 2008 praying in that Petition that the
Court may pass order and direction calling for the records of the
Complaint (ULP) No.118 of 2008 and quash the same and the Order
dated 5th May, 2008 declining interim relief to the claimants also be
quashed. They prayed for quashing and setting aside the orders of
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8transfer and other consequential reliefs arising therefrom. Both these
Petitions were heard together by the learned Single Judge and by the
judgment and order dated 3rd July, 2008, both the Petitions were
disposed of.
6. At this stage itself, it will be useful to refer to the operative
part of the Order dated 3rd July, 2008.
“43.
As the Company has admittedly not obtained
the requisite manufacturing licence so far at
Baddi but is ready to pay the wages to the
employees even though the unit is
operational, provided the employees report for
duty at Baddi, in my view, considering totalityof circumstances it would be just and proper
to direct the Company to engage the technical
staff and obtain requisite manufacturing
licence as expeditiously as possible. As soon
as the licence is granted by the Competentauthority, the Company shall intimate the
same to the Union. Thereupon, the
employees within 15 days of receiving the
above intimation shall report for duty at Baddi.
Till such time, that is, till the intimation isreceived by the Union from the Company
regarding the acquisition of manufacturing
licence and 15 days thereafter the Company
shall pay the wages including the arrears of
salary to these employees. It is made clear
that theemployees will be entitled to the::: Downloaded on – 09/06/2013 13:54:24 :::
9temporary accommodation which was offered
by the Company. Obviously, the Companywill not be required to pay the wages to these
employees if they fail to report for duty atBaddi within 15 days of the Union receiving
the intimation from the Company regarding
the grant of manufacturing licence.44. In the result, Writ Petition No.3505 of 2008
filed by the Company is allowed and the
direction given by the Industrial Court to the
Company to absorb the employees in otherestablishments of the Company in
Mumbai/Thane region is quashed and setaside, except in the case of one employee
who is due to retire in the first week of July,
2008.45. Writ Petition No.1304 of 2008 filed by the
Nicholas Employees Union is dismissed.However, the employees are directed to
report for duty at Baddi within two weeks fromthe date the Company intimates to the Union
that the licence to manufacture Haemaccel at
Baddi has been granted by the competent
authority. Till that time, that is upto the date of
intimation and two weeks thereafter theCompany shall pay the wages including
arrears to these employes. On the employees
reporting for duty at Baddi, the Company shall
provide temporary accommodation to the
employees as already proposed by theCompany.
46. The Industrial Court is directed to dispose of
the Complaint (ULP) No.118 of 2008
expeditiously and preferably within a period of::: Downloaded on – 09/06/2013 13:54:24 :::
10three months from the date of receiving a
copy of this order.47. Both the Writ Petitions are disposed of
accordingly with no order as to costs.”
7. Aggrieved by the order dated 3rd July, 2008 and the above
directions issued by the Learned Single Judge, the Company has
filed the Appeal No.316 of 2008, whereas, the Workmen have filed
the Appeal (L) No.430 of 2008. Thus, by this judgment, we will
dispose of both these Appeals together.
8. The main thrust of the submissions on behalf of the
Company is that once the Learned Single Judge had recorded a
finding that the decision of the Company to transfer the workmen to
Baddi from Mumbai prima facie does not appear to be vitiated by
malafide, then the Court could not have granted any other relief and
no other directions could be issued. On the contrary, according to
the workmen, the order of the Industrial Court ought to have been
entirely upset by the writ Court and the orders of transfer passed
against the workmen should have been quashed as the entire
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11exercise by the Company was malafide and was the result of unfair
labour practice adopted by the Company. In a detailed judgment, the
Learned Single Judge discussed the merits of these contentions and
the law applicable and thereafter issued the above directions.
9. The complaints had been filed before the Industrial Court
at Mumbai under the provisions of Section 28 read with Item 5 of
Schedule II and Items 3, 9 and 10 of Schedule IV of the Maharashtra
Recognition of Trade Union and Prevention of Unfair Labour Practice
Act, 1971 ( hereinafter referred to as the “Act” ) in relation to adoption
of unfair labour practices by the Company. The onus to prove and
show that the unfair labour practices being adopted and the transfer
order was result of such unfair or arbitrary practice is on the
workmen. The Industrial Court in is order had found that the workmen
had no prima facie case, and therefore, had declined the interim
reliefs vide its order dated 5th May, 2008. A finding was recorded that
the Company had taken all steps in making transfer of the employees
and such transfer was not beyond the terms of Item 8 of Letter of
Appointment. In the writ petition before the Learned Single Judge, it
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12was argued vehemently on behalf of the workmen that subsequent to
the appointment of 26 permanent employees, the Company could not
have transferred the employees to Baddi and whatever the workmen
the Company wanted to transfer had been transferred earlier and the
transfers were without any authority in law and was result of, if not
factually, atleast illegal and malafide action. We may notice here
that there is no dispute to the fact that all the workmen in question
and even others
Exhibit-“UU” is
had been issued letters of appointment.
a letter of appointment dated 9th February, 1978
issued to the workman Shri P.D. Dwivedi and Clauses 8 and 9 deal
with transferability of the employment including the applicability of
general terms and conditions as framed by the company.
10. Clauses 8 and 9 of the Letter of Appointment read as
under: –
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13“8. Transferability : You should note that your
services will be subject to Inter-Departmentalor Inter-Establishment transfers, temporarily or
permanently without any additionalremuneration or compensation, depending
upon the exigencies of work of which the
Management will be the sole judge.9. Other Terms and Conditions :
Other terms and conditions will be those as
applicable to other workmen of this Companyas modified from time to time. You will also be
governed by the Certified Standing Orderswhich will be in force for the time being or as
may be modified from time to time.It should be understood that our offer of
employment will be subject to a satisfactory
report from the References and/or previous
employer you have mentioned.”
11. In the face of the above specific terms, it cannot be
disputed that the Company has the right to transfer the workmen.
These terms have not only been accepted but also acted upon
between the parties since 1978. There is no document produced by
the workmen on record to show that any of the appointments was
made without the above clauses.
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12. We also have no hesitation in concurring with the view
taken by the Learned Single Judge that the Company has the power
as per the terms of the letter of appointment to transfer the workmen
as well as their decision to shift the unit from Mumbai to Baddi was in
exercise of its powers of internal management and the said decision
did not suffer from the factual malafide. The decision of the
Company apparently at least at this stage of the proceedings does
not appear to be suffering from any unfair labour practice. We in fact
would accept the reasoning given by the Learned Single Judge in
support of his conlcusion as it is an approach based on the facts of
the case and is in consonance with the settled principles of law which
have been referred to by the Learned Single Judge in the judgment
under appeal. Besides this, we would further add that the argument
on behalf of the Company that the Court could not issue any
direction, once it found the action of the Company does not suffer
from unfair labour practices or malafide, is misconceived in law and
even in facts of the present case. The Industrial Court as well as the
Learned Single Judge were concerned with the interim order during
the pendency of the regular complaint pending enquiry before the
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Industrial Court and the interim order is passed by the Court taking a
prima facie view and not as a final determination of issues between
the parties. The power of the Industrial Court as well as that of the
Learned Single Judge while exercising the powers under Articles 226
and 227 of the Constitution of India cannot be limited in law or
otherwise. The powers of the Court particularly under Article 227 of
the Constitution of India are very wide. Unfair labour practice has
been explained in Section 26 of the Act. Any practice listed in
Schedule II, III and IV would mean unfair labour practice. Adoption of
such practice is barred under Section 27 of the Act and the complaint
in that behalf is filed and dealt with in accordance with the provisions
of Section 28 of the Act. In terms of Section 30(2) of the Act, the
Industrial Tribunal/ Court before whom the proceedings are pending
has been given powers to pass interim orders including any
temporary relief or restraining order as it deems just and proper.
This is indicative of the powers that are vested in the Industrial
Tribunal and obviously in the Courts dealing with the proceedings
arising thereafter. Necessarily, to restrict the scope or powers vested
in relation to the approach to be adopted in a given case can hardly
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be justified while keeping in mind the legislative intent and the
purpose for which these special provisions have been enacted.
While referring to the judgment of the Supreme Court in the case of
State Bank of India vs Anjan Sanyal & Ors. (JT 2001 (5) SC 203), the
learned Counsel appearing for the Company impressed upon us to
hold that since the transfer orders have been held to be valid and for
some period they have not been carried out by the workers, they are
not entitled to wages. There could hardly be any such principle of
law stated by the Supreme Court in Anjan Sanyal’s case (supra) but
that principle has to be applied to a given case with reference to its
facts. In the present case, the Industrial Court had declined the relief
while the Learned Single Judge keeping in view the facts and
circumstances of the case passed the interim directions which
squarely and fully protect the interest of the parties. With the
exception of one workman who was to retire in the first week of July,
2008 and in fact might have retired by today, the other workers were
required to join their duties at Baddi subject to discharge of the
obligations by the Management. Even if the decision of the Company
to transfer its employees in the Plant is not intended with a malafide
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or a patent unfair labour practice, still it has to be an order which
even prima facie should be just fair, equitable and must be in the
organizational interest. The Court is bound to examine the matter
from a prima facie point of view as the proceedings and the
complaints are still pending before the Industrial Court. This being
the position, the Court has to balance equities between the parties in
line with the provisions of Sections 26 to 28 and 30(2) of the Act.
13.
It is a settled principle of law that the Appellate Court should
not disturb the order passed by the Learned Single Judge of this Court
merely on the ground that another view was possible. The Learned Single
Judge has exercised the discretion in relation to the interim order. Therefore,
we hardly see any reason to interfere with the order passed by the Learned
Single Judge. Consequently, we dismiss both the Appeals, however, leaving
the parties to bear their own costs.
CHIEF JUSTICE
A.P. DESHPANDE, J
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