1. The petitioner, a partnership firm having its factory at the address shown in the petition and first party employer in Reference (LCV) No.988/86 has approached this Court by way of this petition challenging the award & order dated 10/6/1999 passed by the Labour Court, Vadodara, in aforesaid reference wherein the two workmen have been ordered to be reinstated and are ordered to be paid Rs.1,000/- each by way of cost. It is pertinent to note that this petitioner is also No.2 first party in the Reference (LCV) No. 990/86 wherein the first party No.1 is shown as Akshar Box Factory and this petitioner is shown to be at item No.2 as second employer. Whereas in the instant case so far as reference (LCV) No.988/86 is concerned it is only one employer namely present petitioner. It is also pertinent to note at this stage that the order in Reference ( LCV) No. 990/86, though the present petitioner was party, he has chosen not to challenge either the findings or relief granted in favour of those workmen in respect of Akshar Box Factory or in any other respect. Thus, so far as the findings of recording in Reference (LCV) No. 990/86 qua which no petition is filed by present petitioner despite the fact that the present petitioner is at Sr. No.2 in the array of first party mentioned therein.
2. Facts in brief leading to filing this petition as could be culled out from the memo of petition deserve to be set out as under.
This petitioner has submitted that It was engaged in the business of manufacturing corrugated boxes in petitioner's partnership firm. The petitioner partnership firm originally had six partners and was employing 15 workers at its factory. On 31/10/1984 petitioner factory was closed down after following due procedure and after making payment of dues to the workmen till October 1984. As the workmen raised industrial dispute and demanded unjustly the reinstatement etc. compromise was arrived at between the management and workmen which came to be recorded on 25/3/1985 in presence of Conciliation Officer requiring payment of 1 ½ months wages as exgratia payment to the workmen. Partnership firm was dissolved as 4 partners walked out who were signatory to the compromise and in place thereof 8 persons were inducted in the new partnership which came into existence w.e.f. 13/11/1985.
3. It is further averred in the memo of the petition that on 1/1/1986 the petitioners factory restarted in the same old name and as there was requirement of only 10 workers out of 15 workers of the old factory, petitioner called upon 10 old workmen to appoint and who joined the factory after this 10 workers no other workers have been engaged. It was the say of the petitioner in the memo of the petition that 2 of the workmen of earlier partnership firm raised industrial dispute which came to be referred to competent court wherein it was numbered as Reference (LCV) No. 988/86. Learned Labour Court held in favour of the workmen vide award dated 10/6/1999 which was subject matter of challenge in this petition. In this award the petitioner was directed to reinstate workmen w.e.f. 11/12/1985 with 25% of back wages from the date of removal. Being aggrieved and dissatisfied with the award and order petitioner has preferred this petition under Article 226/227 of the Constitution of India.
4. The petitioner has made averments in the memo of petition in para-3 grounds that the Labour Court failed in appreciating the fact that on 31/10/1984 the factory run by earlier partnership firm had been closed down after following due procedure of making payment under section 25FFF of the ID Act and the workmen accepted the dues.
5. Learned advocate Shri Chetan Pandya for the petitioner further contended that closure of the petitioner factory and payment of compensation as envisaged under section 25FFF I.D. Act was accepted by the workmen and that brought an end to relationship as workmen & employer, which disentitle the employees workmen to raise industrial dispute. It was further contended on behalf of the petitioner that settlement arrived at by & between the parties could not have been treated as 2-P settlement so as to give a different type of binding force. It was merely a compromise and agreement between the parties to bring an end to the controversy. Unfortunately the said compromise was treated as 2-P settlement which is incorrect, illegal and therefore the award impugned is required to be quashed.
6. The Labour Court ought to have appreciated the fact that assuming that the compromise and settlement was 2-P settlement, then also the petitioner did act in compliance there with as the petitioner engaged requisite number of workmen from old work force.
7. Learned counsel for the petitioner further contended that the terms of compromise have been misinterpreted by the Court allowing there under to raise subsequent dispute as respondent workmen waived their right after having accepted the terms of compromise and accepting 1 ½ months salary as ex-gratia in terms of compromise.
8. The Labour Court ought not to have recorded in its finding that there was no closure of factory on 31/10/1984 as no 3 months notice was given prior to closure. The conclusion of Labour Court with regard to breach of compromise was erroneous, unsustainable and therefore the direction passed there upon is also required to be quashed and set aside. The factum of closure was writ large on account of the evidence adduced. Workmen having forfeited for being employed as per the terms of compromise could not have been claimed as a matter of right to be reinstated on account of dispute. Therefore the finding recorded being contrary to law, the resultant direction is also required to be quashed and set aside.
9. In this petition the award passed by the Labour Court is challenged wherein also there is no dispute that the industry was not started. In fact there is clear admission that the industry commenced its production activity but as it did not require total 15 workmen it engaged first 10 workmen only and thus there is clear indication that so far as commencement of the factory is concerned it is not disputed at all. The settlement and terms of the settlement under which claim of reinstatement is claimed or made by the workmen did not indicate that any such requirement was to be enforced and in case if that is also accepted to be correct interpretation then also plain reading of the settlement persuade this Court to hold that in the first instance there ought to have been re-employment of all and the retrenchment should have been effected later on if there was no work available. But the findings recorded by the Labour Court do not indicate any of this exigency and therefore the award impugned cannot be said to be in any manner unsustainable and therefore the Court cannot disturb the same.
10. In this matter, the stand of the employer is clear that 10 workmen have been engaged and 5 have not been as they were not required. The claim of the petitioner could have been justified only on account of conscious attempt to follow the provisions of law which would make it incumbent on the part of the petitioner company that they were maintaining seniority list and workmen despite of invitation did not chose to join. Therefore, in view of the finding such a pleading or evidence and spacious plea with regard of 5 workmen cannot be accepted. The Court hasten to add here that after undertaking such exercise it would be open to employer to revert or justify before the Court that first 10 employees who have been employed were employed after following due procedure of law and 5 employees were not required to be engaged.
11. In light of this, the Court is of the view that the decision and the findings that it was a device itself is sufficient to show that when such ground is pleaded and not accepted, this court under Article 227 and 226 would not interfere with such finding. The petition is therefore bereft of merits and is dismissed. Rule discharged. Interim relief, if any, earlier granted shall stand vacated. However, there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn