Supreme Court of India
M/S ARIANE ORGACHEM PVT. LTD.versusWYETH EMPLOYEES UNION & ORS.
- Citation
- 2015 INSC 372
- Decided
- 29 April 2015
- Disposal
- Dismissed
- Bench
- V GOPALA GOWDA
Holding
Disputed questions of fact and law concerning the alleged sham transfer and forced voluntary retirement must be referred to and adjudicated by the Industrial Tribunal; the Deputy Labour Commissioner lacked competence to refuse such reference.
Summary
The appellant, Ariane Orgachem Pvt. Ltd., took over the Wyeth Ltd. pharmaceutical factory and its workers under s.25FF of the Industrial Disputes Act, 1947. It later introduced a Voluntary Retirement Scheme (VRS) which 45 of the 143 workers accepted. The Wyeth Employees Union later demanded reinstatement of those workers, alleging that the transfer of undertaking was a sham and that the VRS was obtained by coercion, undue influence and signatures on blank papers. The Deputy Labour Commissioner refused to refer the dispute to an Industrial Tribunal, holding no industrial dispute existed; the High Court quashed that refusal and directed a reference. The Supreme Court held that the genuineness of the transfer and the voluntariness of the retirement are disputed questions of fact and law that must be decided by an Industrial Tribunal, and that the Deputy Labour Commissioner lacked competence to refuse reference. Consequently, the High Court’s order was upheld and the appeals dismissed, with a direction to the Additional Labour Commissioner to make the reference within six weeks and the Tribunal to decide within six months.
Issues considered
- The transfer of undertaking under s.25FF was genuine or a sham.
- Whether the VRS was obtained by coercion, undue influence or fraud, i.e., whether the retirement was forced.
- Whether the Deputy Labour Commissioner had authority under s.10(1)(d) of the Industrial Disputes Act to refuse a reference to the Industrial Tribunal.
- Whether the workers are estopped from raising an industrial dispute after accepting VRS benefits.
- Whether Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act bars the industrial dispute.
- Whether the High Court could intervene in the State Government’s administrative decision to refuse reference.
Legislation cited
- Industrial Disputes Act, 1947s. 10(1)(d), s. 25FF, s. 39(b)
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971s. 59
Subjects
Industrial Disputes ActVoluntary Retirement SchemeTransfer of UndertakingReference to Industrial TribunalCoercionUndue InfluenceEstoppelSection 25FFSection 10(1)(d)MRTU & PULP ActCompetence of Labour Commissioner
Judgment
(2015] 6 S.C.R. 144
A M/SARIANEORGACHEM PVT. LTD.
v.
WYETH EMPLOYEES UNION & ORS.
CIVILAPPEAL NO. 246 OF 2009
B
APRIL29,2015
[V.GOPALA GOWDA AND C. NAGAPPAN, JJ.]
Industrial Disputes Act, 1947: s. 25-FF- Reference of
c dispute - Appellant company took over the factory of third
respondent company along with its workmen in accordance
with provision of s. 25-FF-After sometime appellant company
framed a voluntary retirement scheme which all workmen of
erstwhile company availed -After few months of accepting
D VRS, respondent-Union raised demand seeking their
reinstatement in factory of third respondent - Stand of
appellant company was that industrial dispute could not be
raised since all the workmen had taken VRS benefits and
therefore they were neither the workmen of appellant nor third
E respondent anymore - Labour Commissioner declined to
make an order of reference to Industrial Tribunal stating that
there was no industrial dispute in existence between the
parties - Writ petition - High Court held that the acceptance
of benefits of concerned workmen from appellant may not
F establish the fact that no force or compulsion was exercised
by appellant and this was most contentious and disputed
question offact which could not have been decided by State
Government in exercise of its administrative power and
directed Labour Commissioner to make an order of reference
G to Industrial Dispute - Held: The allegations made against
the appellant-Company regarding the alleged coercion,
undue influence and force used on the workmen for obtaining
their signatures on blank papers needs to be examined very
H carefully by the Industrial Tribunal after recording evidence
144
ARIANE ORGACHEM PVT. LTD v. WYETH 145
EMPLOYEES UNION & ORS.
from both the parties - Therefore, the question regarding the A
alleged termination of the concerned workmen is required to
be referred to the Industrial Tribunal by the State Government
- This complicated question of fact and law could not have
been decided by the alleged delegatee of the State
Government in exercise of its administrative power, as he is B
not the competent authority on behalf of the State
Government to make an order of reference to the Industrial
Tribunal - The quashing of the order of refusarto make an
order of reference by the High Court is perfectly legal and
valid which need not be interfered with. C
Dismissing the appeals, the Court
HELD: 1. The contention on behalf of the
respondent-Union was that the alleged transfer of the o
undertaking of third respondent (M/s Wyeth Ltd.) in
favour of the appellant-Company is not a genuine
transfer and it is a sham one, as it is a transfer of the ·
assets of the Company only and not the transfer of
business of third respondent (Mis Wyeth Ltd). Therefore, E
the same is not in conformity with the provisions of
Section 25FF of the Act. This aspect of the matter
requires adjudication by the Industrial Tribunal in order
to find out the correctness of the plea. This complicated
question of fact and law could not have been decided F
by the alleged delegatee of the State Government in
exercise of its administrative power, as he is not the
competent authority on behalf of the State Government
.to make an order of reference to the Industrial Tribunal.
[Para 22] [163-D-H] G
2. The other important factual aspect of the case
is whether the voluntary retirement of the concerned
workmen was forced or not is required to be proved by
the parties before the Industrial Tribunal by adducing H
..
~
146 SUPREME COURT REPORTS [2015] 6 S.C.R.
A evidence for its detailed examination and scrutiny. The
fact that certain documents were sought to be sum-
moned at the instance of first respondent-Union during
the conciliation proceedings from the appellant-Com-
pany by the Conciliation Officer which were not pro-
8 duced by it is one more important factor which is re-
quired to be considered by the Industrial Tribunal under
Section 10(1)(d) read with the Third Schedule of the Act
in exercise of its original jurisdiction to resolve the dis-
puted questions of fact. Further, the VRS produced on
C record by the Management gives it the discretion to ar-
bitrarily fix the compensation varying from Rs.50,000/-
to Rs. 7, 11,000/-, which if proved, would be considered
as arbitrary and there would be a grave miscarriage of
justice to the concerned workmen. This aspect of the
0
matter has been ignored by the Deputy Labour Com-
missioner, who has erroneously refused to make an or-
der of reference to the Industrial Tribunal for its adjudi-
cation of the existing industrial dispute. Further, there
E were serious allegations made against the appellant-
Company by the workmen regarding the.alleged coer-
cion, undue influence and force used on them for ob-
taining their signatures on blank papers, which needs
to be examined very carefully by the Industrial Tribunal
F after recording evidence from both the parties. Prima
facie, the absence of documentary evidence produced
by the appellant-Company to show that the VRS was
framed by it and converting the signatures of the con-
cerned workmen obtained on the blank papers amounts
G to forced termination of the services of the concerned
workmen which is a disputed question of fact which
requires adjudication by the competent Industrial Tri-
bunal and therefore, the demand regarding the alleged
termination of the concerned workmen is required to be
H referred to the Industrial Tribunal by the State Govern-
ARIANE ORGACHEM PVT. LTD v. WYETH 147
EMPLOYEES UNION & ORS.
ment. The non consideration of this aspect of the mat- A
ter in the order passed by the Deputy Labour Commis-
sioner highlighting only the factual aspect pleaded by
. the appellant-Company unilaterally and not referring to
the facts pleaded on behalf of the concerned workmen
by the first respondent-Union is once again totally B
marred by non application of mind on the part of the
Deputy Commissioner of Labour, apart from the fact that
the Deputy Labour Commissioner has no competency
to exercise his power under the provisions of Section
10(1)(d) of the Act, either to make reference or to refuse C
to make reference to the Industrial Tribunal. [Paras 23,
. 24] [164-B-H; 165-A-D]
National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.
(2009) 1 SCC 267: 2008 (13) SCR 638; Ram Avtar D
Sharma & Ors. v. State of Haryana & Anr. (1985) 3 SCC
189: 1985 (3) SCR 686; Bombay Union of Jomalists
v. State of Bombay AIR 1964SC 1617: 1964 SCR22-
relied on.
E
3. The contention of the appellant that the work-
men are barred from raising the industrial dispute on
the ground of estoppel, is also rejected by this Court in
view of the fact that estoppel is a principle of equity
which deals with the effect of contract and not with its F
cause. It does not mean that a void or voidable contract
cannot be adjudicated by the Industrial Tribunal/courts
merely because the concerned workmen have accepted
the voluntary retirement as pleaded by them and other
benefits from the appellant. These are the disputed ques- G
tions of fact in this case, which requires determination
on the basis of evidence by the Industrial Tribunal and
therefore, a valid reference has to be made to it by the
State Government. Further, the High Court did not con- · H
sider another important aspect that the Deputy Commis-
148 SUPREME COURT REPORTS [2015] 6 S.C.R.
A sioner of Labour is not entrusted with the power under
Section 10(1) (d) of the Act as the delegatee of the State
Government as per the new Notification dated
09.08.2003, issued by the Industries, Energy and Labour
Department in exercise of its power conferred under
B Section 39(b) of the Act. On this ground also, the order
of the Deputy Labour Commissioner, refusing to make
an order of reference regarding the industrial dispute of
the concerned workmen is vitiated in law, and therefore,
quashing of the said refusal order by the High Court is
C perfectly justified. [paras 26, 27, 28] [168-A-H; 169-A-D]
4. The contention was raised by the appellant that
the dispute raised by the first respondent-Union on be-
half of the concerned workmen under the provisions of
D the Act and the request made by it to refer the industrial
dispute to the Industrial Tribunal for its adjudication is
barred under section 59 of MRTU and PULP Act. The
contention is not sustainable. The cause of action for
the present complaint under the provisions of the Act
E was with regard to the illegal action on the part of the
appellant-Company in obtaining the alleged voluntary
retirement letters from the concerned workmen,
whereas, the proceedings under the MRTU & PULP Act
F are in respect of the alleged transactions between the
appellant-Company and Mis Wyeth Ltd: which has re-
sulted in the transfer of the services of the workers from
Mis. Wyeth Ltd. to the appellant-Company. Thus, the
present dispute is whether such "Voluntary Retirement"
G was obtained by undue influence, coercion, fraud, etc.
and whether the workmen are entitled to reinstatement
with full back wages and continuity of service. There-
fore, the subject matter of the complaint under the pro-
visions of MRTU & PULP Act and the subject matter of
H the industrial dispute raised by the first respondent-
ARIANE ORGACHEM PVT. LTD v. WYETH 149
EMPLOYEES UNION & ORS.
Union under the provisions of the Act are totally differ- A
ent as they arise out of different cause of action. [Para
32] [172-A-G]
Bishundeo Narain &Anr. v. Seogeni Rai &Anr. (1951)
SCR548; Mis. Mahabir Jute Mills Ltd., Gorakhpur v. B
Shri Shibban Lal Saxena & Ors. (1975) 2 SCC
818:1976 (1) SCR 168; Govind Sugar Mills Ltd. &Anr.
v. Hind Mazdoor Sabha & Ors. (1976) 1 SCC 60: 1976
(1) SCR 251; Bankoflndia &Ors. v. O.P Swarnakar&
Ors. (2003) 2 sec 721 :2002 (5) Suppl. SCR438; AK. c
Bindal & Anr. v. Union of India & Ors. (2003) 5 SCC
163: 2003 (3) SCR928; Punjab National Bank v.
Virender Kumar Goel & Ors. (2004) 2 SCC 193:2004
(1) SCR 920; Punjab &Sind Bank &Anr. v. S. Ran veer
Singh Bawa &Anr. (2004) 4 SCC484: 2004 (1) Suppl. D
SCR 524; Bank of India & Ors. v. K. V. Vivek Ayer &
Anr. (2006) 9 SCC 177; Gyanendra Sahay v. Tata Iron
& Steel Co. Ltd. (2006) 5 SCC 759:2006 (3) Suppl.
SCR 540; Vice-Chairman & Managing Director,
A.PS.l.D.C. Ltd. &Anr. v. R. Varaprasad & Ors. (2003) E
11 SCC 572: 2003 (1) Suppl. SCR 226; Secretary,
Indian Tea Association v. Ajit Kumar Barat & Ors.
(2000) 3 sec 93: 2000 (1) SCR 78; ANZ Grindlays
Bank Ltd. v. Union of India & Ors. (2005) 12 SCC 738:
F
2005 (5) Suppl. SCR 63; Connecticut Fire Insurance
Co. v Kavanagh (1892) A.C 473, 480 (PC); Gurcharan
Singh v Kam/a Singh (1976) 2 SCC 152: 1976 (1) SCR
739; VLS Finance Limited v. Union of India (2013) 6
SCC 278: 2013 (8) SCR 849; Greater Mohali Area G
Development Authority v. Manju Jain (2010) 9 SCC
157; National Textile Corporation v. Naresh Kumar
Jagad (2011) 12 sec 695: 2012 (14) SCR 472; Port
Trust v Hymanshu International (1979) 4 SCC 176 -
referred to. H
150 SUPREME COURT REPORTS [2015) 6 S.C.R.
A Case Law Reference
(1951) SCR 548 referred to. Para 13
1976 (1) SCR 168 referred to. Para 13
1976 (1) SCR 251 referred to. Para 13
2002 (5) Suppl. SCR 438 referred to. Para 14
B 2003 (3) SCR 928 referred to. Para 14
2004 (1) SCR 920 referred to. Para 14
2004 (1) Suppl. SCR 524 referred to. Para 14
(2006) 9 sec 111 referred to. Para 14
2006 (3) Suppl. SCR 540 referred to. Para 14
c 2003 (1) Suppl. SCR 226 referred to. Para 14
2000 (1) SCR 78 referred to. Para 15
2005 (5) Suppl. SCR 63 referred to. Para 15
2008 (13) SCR 638 relied on Para 24
1985 (3) SCR 686 relied on Para 25
D 1964 SCR 22 relied on Para 26
1976 (1) SCR 739 referred to. Para 29
2013 (8) SCR 849 referred to. Para 29
(2010) 9 sec 157 referred to. Para 29
2012 (14) SCR 472 referred to. Para 29
E (1979) 4 sec 176 referred to. Para 29
CIVILAPPELLATE JURISDICTION: Civil Appeal No.
246 of2009
F From the Judgment and Order dated 16.08.2007 of the
Division Bench High Court of Bombay in Writ Petition No. 444
of2007
WITH
C.A No. 247 of 2009
G
C. U. Singh, DevanshA. Mohta, N. R. Patankar, Shishir
Deshpande, Amit Yadav for the Appellant.
Sanjay Singhvi, Benet D., Aparna Bhat, Tanima Kishore
for the Respondents.
H
ARIANE ORGACHEM PVT. LTD v. WYETH 151
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
The Judgment of the Court was delivered by A
V. GOPALA GOWDA, J. - 1. l.A.No.2 of 2015 in
C.A.No.247 of 2009 for substitution of the name of the
appellant-Company is ordered.
B
2. These appeals are directed against the common
impugned judgment and order dated 16.8.2007 passed by
the High Court of Judicature at Bombay in Writ Petition No.444
of 2007, whereby the High Court quashed the order of the
Deputy Commissioner of Labour, Mumbai, dated 14.8.2006 c
and directed him to referthe industrial dispute of the concerned
workmen as per their demand dated 14.11.2005, for
adjudication of the matter to the Industrial Tribunal under
Section 10(1)(d) of the Industrial Disputes Act, 1~47 (for short
"the Act"). D
3. Since both the appeals are filed against the common
impugned judgment and order of the High Court, for the sake
of convenience, we would refer to the brief facts of C.A.No.246
of 2009 which are stated hereunder: E
The appellant-Company, Mis. Ariane Orgachem Pvt.
ltd. was established to manufacture and market drugs which
are manufactured by it. The appellant-Company, have taken
over the alleged loss incurring pharmaceutical factory of Ml F
s. Wyeth ltd. respondent No.3 herein (appellant-Company
in C.A.247 of 2009), situated at 146, LBS Marg, Ghatkopar,
Mumbai, along with its permanent employees, pursuant to an
agreement dated 25.6.2004 and the sale deed dated
30.6.2004. The letters were issued to the workmen by the G
appellant in this regard, to the effect that they would be
employed under its management without any interruption in
their services.
4. On 30.08.2004, the appellant-Company acquired H
the erstwhile manufacturing facility of Mis. Wyeth ltd.-
152 SUPREME COURT REPORTS [2015] 6 S.C.R.
A respondent No.3 and on 31.8.2004, the respondent No.3
issued letters to its workmen working in its erstwhile factory,
informing them about the sale and transfer of the ownership
and management of the said factory to the appellant-
Company in accordance with the provision of Section 25-FF
B of the Act. They were further informed that their services will
not be interrupted due to such transfer and their services will
be treated as continuous and uninterrupted for the purpose of
retiral/terminal benefits. Thereafter, all the workmen whose
employment came to be transferred from Mis Wyeth Ltd. to
C the appellant-Company started drawing their wages/salary and
all other benefits like advance, LTA and leave, etc. from the
appellant.
5. On 2.9.2004, the respondent no.1-WyethEmployees
D Union (for short "the Union"), which is the recognized Union
under the Provisions of the Maharashtra Recognition of Trade·
Unions and Prevention of Unfair Labour Practices Act, 1971
(for short "the MRTU & PULP Act"), filed Complaint (ULP) No.
534 of 2004, before the Industrial Court challenging the sale
E and transfer of employment of the employees but no interim
relief was granted by the Industrial Court, hence, all the workmen
came on the rolls of appellant-Company and started drawing
wages from it.
F 6. The appellant claimed that it has framed Voluntary
Retirement Scheme (for short "VRS") on 12.4.2005 for the
workmen, offering amounts, tax free, to each workman with all
other dues such as gratuity, ex-gratia, provident fund, leave
encashment etc. which was operative from 12.4.2005 to
G 30.4.2005. On 15.04.2005, 45 out of the total 143 workmen
applied for the said VRS and collected the VRS payments
and the remaining workmen collected the VRS payments
on 20.04.2005 and 21.04.2005. After the payment of the
H VRS benefits, the workmen were relieved from their services
by the appellant-Company.
ARIANE ORGACHEM PVT. LTD v. WYETH 153
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
7. It is further stated by the appellant-Company that A
on 26.4.2005, the first respondent-Union through its General
Secretary, unconditionally withdrew Complaint (ULP) Nos.
534 of 2004, 714 of 2004 and 771 of 2004, confirming to the
court that all the workmen had availed the VRS and the Union
did not want to pursue the cases. B
8. After several months of accepting the VRS, the
respondent-Union raised the demand seeking their
reinstatement in the Company of respondent no.3. In
response to the said demand, the appellant-Company replied C
that all the workmen had taken the VRS benefits and they
were not the workmen of either the appellant-Company or
the third respondent's Company anymore, therefore, no
industrial dispute could be raised by or on their behalf by the
respondent-Union. On 12.12.2005, the respondent-Union, D
wrote a letter to the Assistant Commissioner of Labour,
seeking his intervention in respect of their demand with the
Company. On 01.08.2006, the Conciliation Officer sent the
failure report to the Assistant Commissioner of Labour,
subsequent to which on 14.08.2006, the office of the Deputy E
Labour Commissioner which took cognizance of the failure
report declined to make an order of reference to the Industrial
Tribunal stating thereby that there was no industrial dispute
in existence between the parties.
F
9. Thereafter, the newly elected leadership of the first
respondent-Union under the representation of its new
General Secretary aggrieved by the order of refusal to make
an order of reference to the Industrial Tribunal by the Deputy
Commissioner of Labour filed Writ Petition No. 444 of 2007 G
before the High Court urging various legal grounds and
questioning the correctness of the same.
1O. The High Court in exercise of its power quashed
the order dated 14.8.2006 passed by Deputy Commissioner H
154 SUPREME COURT REPORTS [2015) 6 S.C.R.
A of Labour, Mumbai, who has refused to make an order of
reference to the Industrial Tribunal for its adjudication of the
industrial dispute between the parties. The High Court has
held that the acceptance of the benefits by the concerned
workmen from the appellant may not establish the fact that
B no force or compulsion was exercised by the appellant and
this is the most contentious and disputed question of fact which
could not have been decided by the State Government in
exercise of its administrative power. The High Court has held
that the subjective satisfaction of the subject matter of an
C industrial dispute between the parties by the State Government
is therefore, vitiated in law and making an order of reference
in respect of the concerned workmen is absolutely essential
in this regard. Thus, the High Court by issuing a writ of
mandamus, directed the Deputy Labour Commissioner to
0
make an order of reference to the Industrial Tribunal with regard
to the demand of industrial dispute raised by the Union dated
14.11.2005 on behalf of the concerned workmen, for its
adjudication under Section 10(1 )(d) of the Act. Aggrieved by
E the impugned judgment of the High Court, these appeals have
been filed by the appellant-Companies, praying this Court to
set aside the same contending that the High Court has
exceeded its jurisdiction in passing the impugned judgment
and order.
F
11. It is urged by Mr. C.U. Singh, the learned senior
counsel on behalf of the appellant-Company that the VRS
benefits were aci:;epted by the concerned workmen between
15.4.2005 to 25.4.2005 and the cheques which were issued
G to them towards their voluntary retirement benefits were.
encashed by them. Therefore, raising the industrial dispute
by the concerned workmen after lapse of 7 months, from
the date of acceptance of the VRS benefits, is wholly
untenable in law. It has been further contended by him that
H many concerned workmen have cleared their bank loans
ARIANE ORGACHEM PVT. LTD v. WYETH 155
EMPLOYEES UNION & ORS. [V GOPALA GOWDA, J.]
such as housing loans, Co-operative Society/Co-operative A
bank loans and the appellant-Company has received
intimations from the Banks/Societies to stop deducting and
remitting loan instalments from their salaries.
12. It has been further contended by him that the former B
Joint Secretary of the respondent no.1-Union had withdrawn
the Complaint (ULP) Nos. 534 of 2004 and 714 of 2004 and
Complaint (ULP) No.771 of 2004, after stepping into the
witness box and confirming to the Court that all the workmen
had availed the VRS benefits and the first respondent-Union C
did not wish to pursue the cases. Therefore, the demand raised
by the first respondent-Union on behalf of the concerned
wqrkmen through its General Secretary contending that they
have not availed the VRS benefits under the scheme is only
an afterthought and the same does not amount to an industrial D
dispute and therefore, there is no dispute for the Industrial
Tribunal to adjudicate. The Deputy Labour Commissioner has
rightly arrived at the conclusion on the basis of the facts on
hand and declined to make an order of reference to the
Industrial Tribunal for adjudication of the same. This important E
aspect of the case has not been taken into consideration by
the High Court while quashing the order of refusal to make an
order of reference to the Industrial Tribunal and it has
erroneously issued a writ of mandamus to the Deputy F
Commissioner of Labour against the appellant by directing
him to make an order of reference of the industrial dispute on
the demands raised by first respondent-Union on benalf of the
concerned workmen.
13. It is further contended by the learned senior counsel G
on behalf of the appellant that the first respondent-Union has
not made any allegation against the appellant, regarding the
alleged coercion and fraud played by the appellant in obtaining
the voluntary retirement letters, either in the demands submitted H
to the appellant or before the Conciliation Officer. Therefore,
156 SUPREME COURT REPORTS [2015] 6 S.C.R.
A raising the said contention by the first respondent-Union for
the first time before this Court, without it being first raised before
the Industrial Tribunal and the Conciliation Officer is not
permissible in law as held by this Court in the case of
Bishundeo Narain &Anr. v. Seogeni Rai &Anr. 1 Further, it
B is contended that in view of Section 59 of the MRTU and PULP
Act, there is an express bar on the first respondent to raise an
industrial dispute against the appellant-Company. This legal
aspect of the case has been considered by this Court in the
cases of Mis. Mahabir Jute Mills Ltd., Gorakhpur v. Shri
C Shibban Lal Saxena & Ors.2 and Govind Sugar Mills Ltd.
& Anr. v. Hind Mazdoor Sabha & Ors. 3 Further, the said
allegations made by the first respondent-Union with regard to
the alleged coercion upon the concerned workmen by the
appellant is not factually correct and the same cannot be
0
considered by this Court as it is a frivolous and incorrect
statement of fact made on behalf of the first respondent-Union
with a view to raise frivolous industrial dispute against the
appellant-Company and the respondent No.3.
E 14. The learned senior counsel has further placed
reliance upon the following decisions of this Court in Bank
of India & Ors. v. O.P. Swarnakar & Ors. 4 , A.K. Bindal &
Anr. v. Union of India & Ors. 5, Punjab National Bank v.
F Virender Kumar Goel & Ors. 6, Punjab & Sind Bank & Anr.
v. S. Ranveer Singh Bawa & Anr. 7 and Bank of India &
Ors. v. K. II. Vivek Ayer &Anr.• in support of the proposition
of law that once the VRS is obtained and accepted by the
concerned workmen along with all other monetary benefits,
G , (1951) SCR 548
2
(1975) 2 sec 818
3 (1976) 1 sec 60
' (2003) 2 sec 721
5 (2003) s sec 163
6
(2004)2SCC193
H 7
(2004) 4 sec 484
• (2006) 9 sec 1n
ARIANE ORGACHEM PVT. LTD v. WYETH 157
EMPLOYEES UNION & ORS. [V GOPALA GOWDA, J.]
the same would amount to availing benefits of the scheme and A
no claim can be made by the concerned workmen against the
employer for its reconsideration and no order of reference can
be made for the industrial dispute by the appropriate
government as the same does not exist for adjudication.
Therefore, the principle of estoppel is applicable on the B
concerned workmen to raise an industrial dispute against the
appellant-Company and the respondent No.3 herein on the
subject matter of voluntary retirement, for the reason that once
they have accepted the voluntary retirement from their seNices
and withdrawn all the monetary benefits which were paid to C
them by the appellant, they cannot raise the industrial dispute
in this regard as the same is not permissible in law. He has
further placed reliance upon the judgments of this Court in the
cases of Gyanendra Sahay v. Tata Iron & Steel Co. Ltd. 9 D
and Vice-Chairman &Managing Director, A.P.S.l.D. C. Ltd.
& Anr. v. R. Varaprasad & Ors. 10 , wherein the aforesaid
principles of law have been reiterated by this Court.
15. Further, it has been contended by him that the scope
of judicial review power of the High Court to examine the order E
passed by the State Government in exercise of its
administrative power in the writ petition is very limited as has
been held by this Court in the cases of Secretary, Indian Tea
Associati1 ·'I v. Ajit Kumar Ba rat & Ors. 11 and ANZ Grindlays F
Bank Ltd. ,'. Union of India & Ors.'2 Therefore, the learned
senior counsel has submitted that the impugned judgment and
order is required to be interfered with by this Court in exercise
of its jurisdiction as the exercise of judicial review power by
the High Court is bad in law which cannot be allowed to sustain. G
16. On the other hand, Mr. Sanjay Singhvi, the learned
senior counsel on behalf of the first respondent-Union has
' (2006) 5 sec 759
10
(2003) 11 sec 572
11
(2000) 3 sec 93 H
12 (2005) 12 sec 13a
158 SUPREME COURT REPORTS (2015] 6 S.C.R.
A sought to justify the impugned judgment and order passed by
the High Court contending that the Deputy Labour
Commissioner acting as a delegatee of the State Government
has erroneously refused to make an order of reference to the
Industrial Tribunal on the demands raised by the workmen and
B he has committed a grave error in law and therefore, the High
Court has rightly exercised its extraordinary and supervisory
jurisdiction and quashed the same by issuing a writ of
mandamus. The learned senior counsel has further contended
that the Deputy Commissioner of Labour in fact and in law is
C not a delegatee of the State Government and therefore, he
could not have legally made an order of refusal to make an
order of reference of the industrial dispute to the Industrial
Tribunal for its adjudication. It has been further contended by
D him that the signatures of the concerned workmen were
obtained on blank papers and there was no VRS scheme
introduced by the appellant. Hence, the question of seeking
voluntary retirement from their services does not arise. Further,
the respondent No.3-M/s. Wyeth Ltd., the Company in which
E the concerned workmen were working initially had intimated
the stock exchange about the stoppage of its manufacturing
operations at the Company's plant at LBS Marg, Ghatkopar,
Mumbai. Therefore, it is clear that the said Company wanted
to discontinue and close down the factory and terminate the
F services of the concerned workmen from their services.
However, being a profitable Company, with profit making
operations, the Company has resorted to achieve its end
through a subterfuge by obtaining the signatures of the
concerned workmen on the blank papers by using undue
G influence, coercion etc. in order to circumvent the provisions
of Section 25(0) of the Act. Therefore, the alleged voluntary
retirement of the concerned workmen, is a disputed question
of fact, as the workmen are contending that they have not
voluntarily submitted any application for voluntary retirement
H
ARIANE ORGACHEM PVT. LTD v. WYETH 159
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
from their services to the appellant-Company which fact is A
seriously disputed by the appellant and therefore, the same is
required to be adjudicated by the competent Industrial Tribunal
and not referring the said dispute between the parties by the
State Government to it is an arbitrary and unjustified exercise
of power which is not within the jurisdiction of the State B
Government, in exercise of its administrative power under the
provisions of Section 10(1 )(d) read with the Third Schedule of
the Act. For the above reason itself, the High Court is justified
in quashing the impugned order in the writ petition by passing
the impugned judgment and order which does not warrant C
interference by this Court in exercise of its appellate jurisdiction
in these appeals.
17. It has been further contended by the learned senior
counsel for the first respondent-Union that the appellant- D
Company is owned and controlled by' the Runwal group, which
is a builder/developer and it has entered into a sham
arrangement with M/s Wyeth Ltd. on 30.8.2004 purporting it to
be an alleged transfer of the ownership of its undertaking in
favour of the appellant. However, it is a transfer of the assets E
of the Company only without the transfer of the business of the
appellant in the connected appeal (respondent no.3 herein)
and the same cannot be said to be a genuine transfer of
undertaking of Mis Wyeth Ltd. in accordance with law and in F
terms of Section 25 FF of the Act. The said action of appellant-
Company and the respondent no.3 herein is in violation of the
provisions of Section 25(0) of the Act.
18. Thus, it is urged by the learned senior counsel that
in view of the aforesaid reasons the question of the alleged G
transfer of the workmen from Mis. Wyeth Ltd. to the appellant-
Company is only a ruse and was done only with a view to
acquire the property for real estate development. Therefore,
the factual contentious issue of the alleged voluntary retirement H
160 SUPREME COURT REPORTS [2015) 6 S.C.R.
A of the concerned workmen and the acceptance of the monetary
benefits by them need to be adjudicated by the competent
Industrial Tribunal under an order of reference of the industrial
dispute which has to be referred by the State Government.
This aspect of the matter has not been considered by the State
B Government at the time of passing an order declining to
exercise its administrative power to make an order of reference
to the Industrial Tribunal for its adjudication of the existing
industrial dispute between the workmen and the employer
effectively.
c
19. Further, it has been contended by the learned senior
counsel that the alleged VRS benefits said to have been given
to the concerned workmen is a false plea pleaded by the
appellant-Company before the Conciliation Officer to justify
D their illegal action and the same requires scrutiny by the
Industrial Tribunal on the basis of the evidence that has to be
adduced by the parties. The findings of fact need to be
recorded by it after adjudication of the dispute that is required
to be referred to it by the State Government in exercise of its
E administrative power under the provisions of the Act.
20. It has been further contended by the learned senior
counsel on behalf of the first respondent that after the
resignation of the earlier General Secretary of the first
F respondent-Union was accepted, a new Committee of the
respondent-Union was elected. Thereafter, it decided to take
up the issue of illegal termination of services of the concerned
workmen by the appellant-Company. Further, the Deputy
Labour Commissioner, who has acted as the delegatee of
G the State Government, has not looked into the fact that it
took about 2 to 3 months for the new Committee of the first
respondent-Union to take over the affairs of the Union which
was running under the guidance of its former General
H Secretary and to act in the matter of the forced termination
of the concerned workmen from their services. The petition
ARIANE ORGACHEM PVT. LTD v. WYETH 161
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
submitted to the Conciliation Officer by the respondent-Union A
specifically pleads that "neither any voluntary scheme was
ever framed nor published by the appellant" and the
concerned workmen have not retired from their services
voluntarily. This aspect of the matter has not been taken
into consideration by the Conciliation Officer as well as the B
appropriate State Government at the time of passing the
order refusing to make an order of reference to the Industrial
Tribunal for adjudication of the industrial dispute. The State
Government has also not noticed the relevant fact that the
former General Secretary, without the proper authorisation
from either the first respondent-Union or the concerned
workmen, withdrew the earlier complaints referred to supra,
filed on behalf of the concerned workmen. Further, the State
Government has failed to consider the fact that the appellant-
Company has stated about the VRS being published for the ,D
concerned workmen for the first time, only before it and not
• before the Conciliation Officer in the earlier proceedings.
Further, due to coercion and fear, the workmen were
compelled to sign on the blank papers and the purported E
voluntary retirement letters alleged to have been submitted
to the appellant were not considered by it. The first respondent-
Union called upon the appellant-Company to produce the
Resolution passed by its Board before the Conciliation Officer,
with regard to the alleged VRS and the order of approval said F
to have been granted by the Income Tax Authority for such
scheme. The same were not produced by the appellant before
the Conciliation officer. The State Government at the time of
passing its order ought to have considered this important
factual aspect of the matter before refusing to pass an order G
to make a reference to the Industrial Tribunal regarding the
dispute between the parties in relation to their illegal
termination. For this reason also, the High Court is justified in
quashing the order of refusal to make an order of reference
and therefore, it is rightly justified in issuing a writ of mandamus H
162 SUPREME COURT REPORTS [2015] 6 S.C.R.
A to the State Government to make an order of reference to the
jurisdictional Industrial Tribunal for adjudication of the industrial
dispute between the parties.
21. The learned senior counsel has further urged that
B the failure report of the dispute was addressed to the
Additional Commissioner by the Conciliation Officer on
1.8.2006, but the Deputy Commissioner of Labour called
for the file from the Conciliation Officer and declined to
exercise his power under Section 10(1 )(d) read with the Third
C Schedule of the Act, without adverting to a single contention
urged on behalf of the workmen in the petition submitted
before the Conciliation Officer by the first respondent-Union.
The non-consideration of the claim made by the respondent-
Union on behalf of the concerned workmen by the Deputy
D Commissioner of Labour at the time of refusing to pass an
order of reference, not only vitiates the impugned order in
the writ petition on account of non application of mind by the
alleged de legatee of the State Government but also vitiated
in law for the reason that the Deputy Commissioner of Labour
E is not the competent officer to make an order of reference to
the Industrial Tribunal or to refuse to make an order of reference
to the Industrial Tribunal. The Additional Commissioner of
Labour is the only competent authority who is the delegatee of
F the State Government as per the notification dated 9.8.2003
issued by the Ministry of Labour, Government of Maharashtra
and therefore, he alone could have passed an order of
reference urider Section 10(1 )(d) of the Act. Thus, the order of
refusal to make an order of reference of the existing industrial
G dispute between the parties to the Industrial Tribunal is void
ab initio in law as the same has not been exercised by
competent officer as the delegatee of the State Government.
On this ground itself the impugned judgment and order of the
High Court is justified in quashing the order of refusal to make
H an order of reference regarding the industrial dispute to the
ARIANE ORGACHEM PVT. LTD v. WYETH 163
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
Industrial Tribunal. A
22. With reference to the above mentioned rival legal
contentions urged on behalf of the parties, we have carefully
examined the impugned judgment and order, with a view to
find out whether the High Court is justified in quashing the B
order of refusal to make an order of reference regarding the
industrial dispute raised by the first respondent-Union on
behalf of the concerned workmen to the Industrial Tribunal
for its adjudication. We answer the same in the affirmative
in favour of the first respondent-Union for the following C
reasons:-
It is an undisputed fact that the concerned workmen
are the employees of Mis Wyeth Ltd. who is the respondent
no.3 herein and the appellant in the connected appeal. The D
contention urged by the learned senior counsel on behalf of
the respondent-Union is that the alleged transfer of the
undertaking of Mis Wyeth Ltd. in favour of the appellant-
Company is not a genuine transfer and it is a sham one, as
it is a transfer ofthe assets of the Company only not the E
transfer of business of Mis Wyeth Ltd. Therefore, the same is
' .
not in conformity with the provisions of Section 25FF of the
Act. This aspect of the matter requires adjudication by the
Industrial Tribunal in order to find out the correctness of the
plea, whether the transfer of the undertaking Mis Wyeth Ltd. in F
favour of the appellant is genuine or not and whether the
concerned workmen have accepted the retiral benefits and
other monetary claims voluntarily, as pleaded by the appellant.
This complicated question offact and law could not have been
decided by the alleged delegatee of the State Government in G
exercise of its administrative power, as he is not the competent
authority on behalf of the State Government to make an order
of reference to the Industrial Tribunal. The conclusion arrived
at by the High Court is supplemented with the reasons arrived H
164 SUPREME COURT REPORTS [2015] 6 S.C.R.
A at by this Court. Therefore, quashing of the order of refusal to
make an order of reference by the High Court is perfectly legal
and valid which need not be interfered with by this Court in
exercise of its jurisdiction.
B 23. The other important factual aspect of the case is
whether the voluntary retirement of the concerned workmen
was forced or not is required to be produced by the parties
before the Industrial Tribunal for its detailed examination and
. scrutiny. The fact that certain documents were sought to be
C summoned at the instance of first respondent-Union during
the conciliation proceedings from the appellant-Company
by the Conciliation Officer which were not produced by it is
one more important factor which is required to be considered
by the Industrial Tribunal under Section 10(1 )(d) read with the
D Third Schedule of the Act in exercise of its original jurisdiction
to resolve the disputed questions of fact. Further, the VRS
produced on record by the Management gives it the discretion
to arbitrarily fix the compensation varying from Rs.50 ,000/- to
Rs.7,11,000/-, which if proved, would be considered as
E arbitrary and there would be a grave miscarriage of justice to
the concerned workmen. This aspect of the matter has been
ignored by the Deputy Labour Commissioner, who has
erroneously refused to make an order of reference to the
F Industrial Tribunal for its adjudication of the existing industrial
dispute.
24. Further, there are serious allegations made against
the appellant-Company by the workmen regarding the alleged
coercion, undue influence and force used on them for obtaining
G their signatures on blank papers, which needs to be examined
very carefully by the Industrial Tribunal after recording evidence
from both the parties. Prima facie, the absence of documentary
evidence produced by the appellant-Company to show that
H the VRS was framed by it and converting the signatures of the
ARIANE ORGACHEM PVT. LTD v. WYETH 165
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
concerned workmen obtained on the blank papers amounts A
to forced termination of the services of the concerned workmen
which is a disputed question of fact which requires adjudication
by the competent Industrial Tribunal and therefore, the demand
regarding the alleged termination of the concerned workmen
is required to be referred to the Industrial Tribunal by the State B
Government. The non consideration of this aspect of the matter
in the order dated 14.08.2006 passed by the Deputy Labour
Commissioner highlighting only the factual aspect pleaded by
the appellant-Company unilaterally and not referring to the facts
pleaded on behalf of the concerned workmen by the first C
respondent-Union is once again totally marred by non
application of mind on the part of the Deputy Commissioner
of Labour, apart from the fact that the Deputy Labour
Commissioner has no competency to exercise his power D
under the provisions of Section 10(1 )(d) of the Act, either to
make reference or to refuse to make reference to the Industrial
Tribunal. On the above grounds also, the impugned judgment
and order of the High Court is not required to be interfered
with by this Court in these appeals. Reliance has been placed E
upon the decision of this Court by the learned senior counsel
on behalf of the first respondent-Union in the case of National
Insurance Co. Ltd. v. Boghara Po/yfab Pvt. Ltd. 13 , wherein
this Court has held thus:
F
"26. When we refer to a discharge of contract by an
agreement signed by both parties or by execution of a
full and final discharge voucher/receipt by one of the
parties, we refer to an agreement or discharge voucher
which is validly and voluntarily executed. If the party who G
has executed the discharge agreement or discharge
voucher, alleges that the execution of such discharge
agreement or voucher was on account of fraud/coercion/
undue influence practiced by the other party and is able
" (2009) 1 sec 267 H
166 SUPREME COURT REPORTS [2015) 6 S.C.R.
A to establish the same, then obviously the discharge of
the contract by such agreement/voucher is rendered void
and cannot be acted upon. Consequently, any dispute
raised by such party would be arbitrable."
B 25. Further, the failure report of the conciliation
proceedings is not the sufficient material evidence to arrive at
the conclusion by the State Government to decline to exercise
its statutory power under the provisions of Section 10(1)(d)
read with the Third Schedule of the Act either to make/or not to
C make an order of reference. The refusal to make an order of
reference by the State Government's delegatee amounts to
determination of the existing dispute between the parties by
the State Government in the absence of relevant and material
evidence on record which ought not to have been done by him
D while exercising his power under Section 10(1 )(d) of the Act.
In this regard, the High Court has rightly placed reliance upon
the case of Ram Avtar Sharma & Ors. v. State of Haryana
& Anr. 14, the relevant para of which reads thus:
E "11. The appropriate Government being the Central
Government in this case declined to make a reference
as per its order dated December 9, 1983 in which it is
stated that 'the action of the management in imposing
on the workmen penalty of removal from service on
F the basis of an enquiry and in accordance with the
procedure laid down in the Railway Servants (Discipline
&Appeal) Rules. 1968 is neither malafide nor unjustified.
The appropriate Government does not consider it
necessary to refer the dispute to the Industrial Tribunal
G for adjudication.' Ex facie it would appear that the
Government acted on extraneous and irrelevant
considerations and the reasons hereinbefore mentioned
will mutatis mutandis apply m respect of present order of
the Government under challenge. Therefore for the same
H
14
(1985) 3 sec 189
ARIANE ORGACHEM PVT. LTD v. WYETH 167
. EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.)
reasons, a writ of mandamus must be issued. A
12. Accordingly all the writ petitions are allowed and the
rule is made absolute in each case. Let a writ of
mandamus be issued directing the appropriate
Government in each case namely the State of Haryana B
in the first mentioned group of petitions and the Central
Government in the second petition to reconsider its
decision and to exercise power under Section 10 on
relevant and considerations germane to the decision.
In other words, a clear case of reference under Section C
10(1) in each case is made out."
26. Further, the High Court has rightly adverted to
various judgments of this Court including Bombay Union
of Jornalists v. State of Bombay15 wherein it was held D
thus:
"6 .......... it would not be possible to accept the plea
that the appropriate Government is precluded from
considering even prima faCie the merits of the dispute E
when it decides the question as to whether its power to
make a reference should be exercised under Section
10(1)read with Section 12(5), or not. If the claim made is
patently frivolous, or is clearly belated the appropriate
Government may refuse to make a reference. Likewise, F
if the impact of the claim on the general relations between
the employer and the employees in the region is likely to
be adverse, the appropriate Government may take that
into account in deciding whether a reference should be
made or not. It must, therefore, be held that and prima G
facie examination of the merits cannot be said to be
foreign to the enquiry which the appropriate Government
is entitled to make in dealing with a dispute under Section
10(1) ...... "
15 AIR 1964 SC 1617 H
168 SUPREME COURT REPORTS (2015) 6 S.C.R.
A Therefore, in the present case, the dispute raised by the
respondent-Union on behalf of the concerned workmen is
neither patently frivolous nor is it a belated claim of the
concerned workmen. The contention of the learned senior
counsel for the appellant that the workmen are barred from
B raising the industrial dispute on the ground of estoppe/, is also
rejected by this Court in view of the fact that estoppel is a
principle of equity which deals with the effect of contract and
not with its cause. It does not mean that a void or voidable
contract cannot be adjudicated by the Industrial Tribunal/courts
C merely because the concerned workmen have accepted the
voluntary retirement as pleaded by them and other benefits
from the appellant as per the case of National Insurance
Co. Ltd. (supra).
D 27. Having regard to the facts and circumstances of
the case and the contentions urged on behalf of the learned
counsel for the parties, we have come to the conclusion that
these are the disputed questions of fact in this case, which
requires determination on the basis of evidence by the
E Industrial Tribunal and therefore, a valid reference has to be
made to it by the State Government. The various decisions
relied upon by the learned senior counsel Mr. C. U. Singh on
behalf of the appellant referred to supra are misplaced and
F have no application to the fact situation of the present case.
28. Further, the High Court has not considered another
important aspect of the case, namely, that the Deputy
Commissioner of Labour is not entrusted with the power under
Section 10(1) (d) of the Act as the delegatee of the State
G Government as per the new Notification dated 09.08.2003,
issued by the Industries, Energy and Labour Department,
Mantralaya, Mumbai in exercise of its power conferred under
Section 39(b) of the Act which is produced on record. As per
H the said notification, the State of Maharashtra has conferred
ARIANE ORGACHEM PVT. LTD v. WYETH 169
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
its power upon the Labour Commissioner and the Additional A
Labour Commissioner to exercise its power under Section
10(1 ),(2) & (3) and other provisions of the Act. There is no
other notification produced by the employer either before the
High Court or this Court to show that the Deputy Labour
Commissioner has got power as the delegatee of the State B
Government to make an order of reference under the provisions
of Section 10(1)(d) read with the Third Schedule of the Act to
the Industrial Tribunal. On this ground also, the order of the
Deputy Labour Commissioner, refusing to make an order of
reference regarding the industrial dispute of the concerned C
workmen is vitiated in law, as the same is void ab initio in law
and therefore, quashing of the said refusal order by the High
Court is perfectly justified.
29. The appellant-Company has also contended that D
the respondent-Union has also raised the legal question
regarding the competency of the Deputy Labour
Commissioner in passing the order of reference for the first
time before this Court and the same was not raised before
the High Court, therefore, the same shall not be permitted E
to be raised in these proceedings and this Court need not
go into this aspect of the matter which is wholly untenable in
law. This contention raised by the learned senior counsel for
the appellant is rejected as the said contention is contrary F
to the issues/principles laid down by the Privy Council and this
Court in the following judgments:
In Connecticut Fire Insurance Co. v Kavanagh 16 , Lord
Watson has observed as under:
G
· "When a question of law is raised for the first time in a
court of last resort, upon the construction of a
document, or upon facts either admitted or proved
beyond controversy, it is not only competent but
expedient. in the interests of justice, to entertain the H
170 SUPREME COURT REPORTS [2015] 6 S.C.R.
A plea."
The aforementioned view of the Court of Appeal have
been relied upon by this Court in Gurcharan Singh v Kamla
Singh 17 . Therefore, with regard to the above mentioned
B aspect regarding the plea of the competency of the Deputy
Labour Commissioner to pass an order of refusal to make a
reference, although is being raised before this Court for the
first time, is based on admitted facts. Hence, in accordance
with the view taken by the Court of Appeal in Connecticut
C Fire Insurance Co. case (supra) and this Court in Gurcharan
Singh case (supra), the argument advanced by the first
respondent-Union deserves to be considered by this Court.
Similar view has also been taken by this Court in the cases of
VLS Finance Limited v. Union of lndia 18 and Greater Mohali
D Area Development Authority v. Manju Jain' 9, wherein it has
been held that pure question of law can be raised at any stage
of litigation. In National Textile Corporation v. Naresh
Kumar JagacP0, it has been held by this Court that a new
ground raising pure legal issue for which no inquiry or proof is
E required, can be raised at any stage. Further, in the case of
Port Trust v Hymanshu lnternationaP', this Court has held
thus:
"2 ....... The plea of limitation based on this section is
F one which the court always looks upon with disfavour
and it is unfortunate that a public authority like the Port
Trust should, in all morality and justice, take up such a
plea to defeat a just claim of the citizen. It is high time
that governments and public authorities adopt the
G practice of not relying upon technical pleas for the
purpose of defeating legitimate claims of citizens and
1s (1892)A.C 473. 480 (PC)
11
(1976) 2 sec 152
" c2013) 6 sec 218
H 19 (2010)9SCC 157
20 c2011) 12 sec 695
ARIANE ORGACHEM PVT. LTD v. WYETH 171
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
do what is fair and just to the citizens. Of course, if a A
government or a public authority takes up a technical plea,
the Court has to decide it and if the plea is well-founded,
it has to be upheld by the court, but what we feel is that
such a plea should not ordinarily be taken up by a
government or a public authority, unless of course the B
claim is not well-founded and by reason of delay in filing
it, the evidence for the purpose of resisting such a claim
has become unavailable ...... "
30. The conclusion arrived at by the High Court that the C
order of refusal to make an order of reference of the existing
industrial dispute to th~ Industrial Tribunal by the Deputy
Commissioner of Labour is bad in law and it has rightly issued
the writ of mandamus to the State Government and the Deputy
Commissioner of Labour for the reason that the employer has D
been litigating the matter before the High Court for several
years and the High Court, based on the pleadings and evidence
on record, must have felt that the disputed questions of fact
pleaded by the parties warrant the adjudication of the dispute
effectively by the Industrial Tribunal. Therefore, we do not find E
any reason to set aside the order of writ of mandamus issued
by the High Court to the State Government represented by the
Deputy Labour Commissioner.
31. The reliance placed upon the various judgments of F
this Court by the learned senior counsel for the appellant on
merits of the alleged voluntary retirement of the concerned
workmen need not be examined in these appeals by this
Court, as those judgments have no application to the fact
situation of the present case and it would be premature to G
apply the said principles to the fact situation at this stage,
particularly, having regard to the legal contentions urged by
the learned senior counsel on behalf of the respondent-
Union.
H
21
(1979) 4 sec 176
172 SUPREME COURT REPORTS (2015] 6 S.C.R.
A 32. The learned senior counsel on behalf of the
appellant-Company has further contended that the dispute
raised by the first respondent-Union on behalf of the concerned
workmen under the provisions of the Act and the request made
by itto refer the industrial dispute to the Industrial Tribunal for
B its adjudication is barred under Section 59 of the MRTU &
PULP Act. The aforesaid contention is wholly untenable in law
for the reason that the cause of action for the present complaint
under the provisions of the Act is with regard to the illegal action
on the part of the appellant-Company in obtaining the alleged
C voluntary retirement letters from the concerned workmen,
whereas, the proceedings under the MRTU & PULP Act are in
respect of the alleged transactions eetween the appellant-
Company and Mis Wyeth Ltd. which has resulted in the transfer
of the services of the workers from M/s. Wyeth Ltd. to the
0
appellant-Company which cause of action in respect of these
proceedings arose on 30.8.2004. Thus, the present dispute
is with regard to the so-called "Voluntary Retirement" of the
concerned workmen which took place on 15.4.2005 and 201/1/
E 21•1April, 2005, wherein the subject matter is whether such
"Voluntary Retirement" was obtained by undue influence,
coercion, fraud, etc. and whether the workmen are entitled to
reinstatement with full back wages and continuity of service.
Therefore, the subject matter of the complaint under the
F provisions of MRTU &PULP Act and the subject matter of the
industrial dispute raised by the first respondent-Union under
the provisions of the Act are totally different as they arise out
of different cause of action. Hence, the contention urged in
this regard by the learned senior counsel on behalf of the
G appellant-Company mustfail.
33. Hence, in our considered view the impugned
judgment and order passed by the High Court is perfectly
legal and valid and the same does not call for interference
H by this Court except with certain modification in the operative
ARIANE ORGACHEM PVT. LTD v. WYETH 173
EMPLOYEES UNION & ORS. [V. GOPALA GOWDA, J.]
portion of the order of the High Court, namely, with regard to A
the direction given to the State Government represented by
the Deputy Labour Commissioner which is not in accordance
with the notification referred to supra. The said direction has
to be given to the Additional Labour Commissioner (in
accordance with the Notification dated 09.08.2003) to make B
an order of reference to the Industrial Tribunal within six
weeks from the date of receipt of the copy of this order as
the matter has been pending at the reference making stage
itself for several years at the instance of the appellant-Company
and the respondent no.3 herein. C
34. We therefore, issue the direction to the State
Government represented by its delegatee, the Additional
Commissioner of Labour, to make an order of reference to
the competent Industrial Tribunal within six weeks from the D
date of receipt of the copy of this judgment. We further direct
the Industrial Tribunal to decide the case within six months
from the date of receipt of such order of reference after
affording an opportunity to both the parties and to pass
appropriate award. E
35. The Industrial Tribunal shall not be influenced by
the observations made in this judgment. The Industrial.Tribunal
shall examine the case of the parties with reference to the
evidence that may be produced on record by them and the F
rival legal contentions that would be urged on behalf of the
parties may be considered at the time of adjudication of the
dispute and the same has to be adjudicated on its own merit
uninfluenced by the observations made in the judgment.
G
36. These appeals are dismissed with costs of Rs. one
lakh in each appeal towards the cost of these proceedings,
for the reason that they have caused delay in referring the
dispute to the Industrial Tribunal for its adjudication. The same
shall be deposited before the Industrial Tribunal immediately H
174 SUPREME COURT REPORTS [2015] 6 S.C.R.
A after the order of reference is made to it and before the parties
are called upon to file their respective claims and the said
amount shall be paid to the concerned workmen
proportionately through the first respondent-Union. The order
dated 24.9.2007 granting stay of the impugned order shall
B stand vacated.
Devika Gujral Appeals dismissed.
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