SIEMENS LTD. & ANOTHERversusSIEMENS EMPLOYEES UNION & ANOTHER

               [2011] 15 (ADDL.) S.C.R. 1157


                SIEMENS LTD. & ANOTHER                              A
                               v.
       SIEMENS EMPLOYEES UNION & ANOTHER
           (CIVIL APPEAL N0.8607 OF 2011)
                     OCTOBER 12, 2011
                                                                    B
     [D.K. JAIN AND ASOK KUMAR GANGULY,. JJ.]

       Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 - ss.26, 27,
28 rlw s.30(2) and Schedule IV, item no. 9 - Unfair Labour          C
Practice - Appellant-company issued notification dated 3rd
 May, 2007 for workmen employed in its factory, whereby
 applications were invited to appear for a selection process to
 undergo a two year long period as an 'Officer Trainee' - The
 notification stated that after successful completion of the said   0
 two years, the trainees were to be designated as 'Junior
Executive Officers' - Grievance of respondent-trade union that
 though the designation of 'Junior Executive Officer' was that
 of an officer belonging to the management cadre, in fact the
job description of a Junior Executive Officer was same as that
 of a workman, with little additional duties; that such a move      E
 was, in effect an alteration in the conditions of service of the
 workmen and resulted in reduction in the job opportunities for
workers - Plea of respondent- trade union that the change
sought to be brought about by the appellant-company by its
 said notification was in violation of clause 7 of the industrial   F
 agreemenVsett/ement entered into between itself and the
 appellant-company in 1982 and that the appellant-company
 had resorted to unfair labour practice under item No.9 of
 Schedule IV of the Act - Labour Court held against the
 appellant-company - Order upheld by High Court - On                G
 appeal, held: While considering clause 7 of the said
 settlement the Courts below did not taken into consideration
 clause 12 - Clause 7 contained a prohibition against the
 employees or officers or members of the staff of the appellant-
                              1157                                  H
    1158 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A company from doing normal production work - But that
   cannot be read in such a manner as to nullify the purport of
   clause 12 which reseNed promotional employment potential
   of existing workmen - So in the instant case if by way of
   rearrangement of work, the management of appellant-
s  company gave promotional opportunity to the existing workers
   that did not bring about any violation of clause 7 of the said
   settlement rather such a rearrangement of work was in terms
   of clause 12 - What was restricted under clause 7 was asking
   the officers to do the normal production work - There was no
   blanket ban in asking the officers from doing any production
C work - Both clause 7 and clause 12 of the said settlement
  must be reasonably and harmoniously construed to make it
   workable with the evolving work culture of the appellant-
  company in facing new challenges in the emerging economic
  order which had changed considerably from 1982 - Further,
D both Labour Court and the High court failed to take into
  consideration that the workers voluntarily applied for the
  promotion scheme pursuant to its introduction - Besides,
  legally also the management of the company was not
  prevented from rearranging its business in the manner it .
E considered it best, if in the process it did not indulge in
  victimization - In the instant case no malafide was alleged
  against the appellant-company - No allegation of
  victimization was made by the respondent-union in its
  complaint - In the given situation, it cannot be said that by
F introducing the scheme of promotion, to which the workers
  overwhelmingly responded on their own, the management
  indulged in unfair labour practice - In fact if the order of the
  High Court is upheld, the same will go against the interest of
                                 '
  erstwhile workmen of appellant-company     who had responded
  to the scheme of promotion - Order of the High Court set
G aside - However, it is made clear that in implementing the
  scheme the management of appellant-company would not
  bring about any retrenchment of the workmen nor any
  workmen be rendered surplus in any way.
      Maharashtra Recognition of Trade Unions and
H Prevention of Unfair Labour Practices Act, 1971 - s.26 and
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1159
                 UNION &ANR.

27 and Schedule II, Ill and IV - Unfair Labour Practice - A
Difference between provisions relating to unfair labour
practices in the Maharashtra Act a[Jd those in Central Act i.e.
Industrial Disputes Act - Held: The Industrial Disputes Act
prohibits an employer or workmen or a trade union from
committing any unfair labour practice while the Maharashtra 8
Act prohibits an employer or union or an employee from
engaging in any unfair labour practice - The prohibition under
the Industrial Disputes Act is aimed at preventing the
commission of an unfair labour practice while the Maharashtra
Act mandates that the concerned parties cannot be engaged
in any unfair labour practice - The word 'engage' is more C
comprehensive in nature as compared to the wore! 'commit'
- Industrial Disputes Act, 1947 - s.2(ra) and Vth schedule.
      Labour Laws - Unfair Labour Practice - Concept of -
Held: Any unfair labour practice within its very concept must
have some elements of arbitrariness and unreasonableness
                                                                  0
- If unfair labour practice is established the same would bring
about a violation of guarantee under Article 14 of the
Constitution - Therefore, anyone who alleges unfair labour
practice must plead it specifically and such a/legations must
be established properly before any forum can pronounce on         E
the same - Constitution of India, 1950 - Article 14.
     Labour Laws - Unfair Labour Practice - Changed
economic scenario - Effect of - Held: In the changed
economic scenario, the concept of unfair labour practice is
also required to be understood in the changed context - F
Today every State, which has to don the mantle of a welfare
state, must keep in mind the twin objectives of industrial peace
and economic justice and the courts and statutory bodies
while deciding what unfair labour practice is must also be
cognizant of t~e aforesaid twin objects.                         G
    Constitution of India, 1950 - Article 136 - Jurisdiction
under - Held: There can be no hard and fast rule in the
exercise of this jurisdiction - Just because the findings which
are assailed in a special leave petition are concurrent cannot
debar the Supreme Court from exercising its jurisdiction if the   H
   1160 SUPREME COURT REPORTS [2011] 15 (ADDL.) $.C.R.


A demands of justice require its interference - In a case where
  the Supreme Court finds that the concurrent finding is based
  on patently erroneous appreciation of basic issues involved
  in an adjudication, the Supreme Court may interfere.
      Precedent - Ratio decidendi - Held: The ratio of a
B decision has to be appreciated in its context.
         Words and Phrases - 'commit and 'engage' - Meaning
   of.
         Appellant no.1-company issued notification dated
C 3rd May, 2007 for workmen employed in its factory,
   whereby applications were invited to appear for a
   selection process to undergo a two year long period as
   an 'Officer Trainee'. The notification stated that after
   successful completion of the said two years, the trainees
   were to be designated as 'Junior Executive Officers'.
D Respondent-trade union filed complaint under Section 2a
    read with Section 30(2) of the Maharashtra Recognition
   of Trade Unions and Prevention of Unfair Labour
    Practices Act, 1971 inter alia alleging that though the
   designation of 'Junior Executive Officer' was that of an
E officer belonging to the management cadre, in fact the
   job description of a Junior Executive Officer was same
   as that of a workman, with little additional duties and
    resultantly, the Junior Executive Officers of the factory
   were now to do the very same work that had always been
F done by the workmen; that such a move was, in effect
    an alteration in the conditions of service of the workmen
   and resulted in reduction in the job opportunities for
   workers. The trade union submitted that the change
    sought to be brought about by the appellant-company by
G . its said notification was in violation of clause (7) of the
    agreement I settlement entered into between itself and the
    appellant-company in 1982 and that the appellant-
    company had resorted to unfair labour practice under
    item No.9 of Schedule IV of the Maharashtra Act of 1971
    and had th~reby violated the mandate of Section 27 of the
H said Act.
 SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1161
                UNION &ANR..

     The Labour Court held that there was an attempt by         A
the appellant-company not to implement clause 7 of the
1982 agreement I settlement and this amounted to an
unfair labour practice. The appellant-company filed writ
petition. A Single Judge of the High Court upheld the
order of the Labour Court. The Division Bench of the            8
High Court affirmed the finding of the Single Judge.
Hence the present appeal.
    Allowing the appeal, the Court
     HELD: 1. Any unfair labour practice within its very
concept must have some elements of arbitrariness and            C
unreasonableness and if unfair labour practice is
established the same would bring about a violation of
guarantee under Article 14 of the Constitution. Therefore,
it is axiomatic that anyone who alleges unfair labour
practice must plead it specifically and such allegations        D
must be established properly before any forum can
pronounce on the same. It is also to be kept in mind that
in the changed economic scenario, the concept of unfair
labour practice is also required to be understood in the
changed context. Today every State, which has to don            E
the mantle of a welfare state, must keep in mind the twin
objectives of industrial peace and economic justice and
the courts and statutory bodies while deciding what
unfair labour practice is must also be cognizant of the
aforesaid twin objects. [Para 19] [1172-C-E]
                                                                F
     2.1. Unfair labour practice, for the first time, was
defined and codified in the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices
Act, 1971. But insofar as the Industrial Disputes Act,
Central Law, is concerned, unfair labour practice was           G
codified and brought into force by the Amending Act, 46
of 1982 with effect from 21st August 1984. [Para 20]
[1172-F·G]                .
    .2.2. Clause (ra) of Section 2 of Industrial Disputes Act
defines unfair labour practice to mean the practices            H
    1162 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A specified in the fifth schedule and the fifth schedule was
  also inserted by the said Amending Act. The fifth schedule
  has two parts. The first part refers to unfair labour
  practices on the part of the employers and trade union
  of employers and the second part refers to unfair labour
8 practices  on the part of the workmen and trade union of
  workmen. However, there is some difference between the
  provisions relating to unfair labour practices in the
  Maharashtra Act and those in Central Act i.e. Industrial
  Disputes Act. The Industrial Disputes Act prohibits an
  employer or workmen or a trade union from committing
C any unfair labour practice while the Maharashtra Act
  prohibits an employer or union or an employee from
  engaging in any unfair labour practice. The prohibition
  under the Industrial Disputes Act is aimed at preventing
  the commission of an unfair labour practice while the
D Maharashtra Act mandates that the concerned parties
  cannot be engaged in any unfair labour practice. The
  word 'engage' is more comprehensive in nature as
  compared to the word 'commit'. [Para 21] [1172-H; 1173·
  A·D]
E        Hindustan Lever Ltd. v. Ashok Vishnu Kate &others 1995
    (6) sec 326: 1995 (3) Suppl. SCR 702 - relied on.
       3.1. It is true that this Court normally does not upset
  a concurrent finding but there is no such inflexible rule.
  The jurisdiction of this Court under Article 136 is a special
F jurisdiction. This is clear from the text of the Article itself
  which starts with a non-obstante clause. This is· a
  jurisdiction conferring residual power on this Court to do
  justice and is to be exercised solely on discretion to be
  used by this Court to advance the cause of justice. This
G Article does not confer any right of appeal on any litigant.
  But it simply clothes this Court with discretion which is
  to be exercised in an appropriate case for ends of justict.
  Therefore, there can be no hard and fast rule in the
  exercise of this jurisdiction. Just because the findings
H which are assailed in a special leave petition are
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1163
                 UNION &ANR.
concurrent cannot debar this Court from exercising its      A
jurisdiction if the demands of justice require its
interference. In a case where the Court finds that the
concurrent finding is based on patently erroneous
appreciation of basic issues involved in an adjudication,
the Court may interfere. In the instant case the Court      B
proposes to interfere with the concurrent finding for the
reasons discussed hereinbelow. [Para 27] (1174-G-H;
1175-A-C]
     3.2. It is well known that an industr:al settlement is
entered into between the management and labour for c
maintaining industrial peace and harmony. Therefore,
any attempt by either the management or the workmen
to violate such a settlement may lead to industrial unrest
and amounts to an unfair labour practice. Here the charge
of unfair labour practice against the appellant-company
                                                            0
is that it has violated item 9 of Schedule IV of the
Maharashtra Act. The purport of item 9 is that any failure
to implement an award or settlement or agreement would
be an unfair labour practice. In the instant case while
considering clause 7 of the said settlement the Courts
have not taken into consideration clause 12. If a E
harmonious reading is made of clauses 7 and 12 it will
be clear that clause 7 cannot be given an interpretation
which makes clause 12 totally redundant. Clause 7
contains a prohibition against the employees or officers .
or members of the staff of the appellant-company from F
doing normal production work. But that cannot be read
in such a manner as to nullify the purport of clause 12
which reserves the promotional employment potential of
existing workmen. So in the instant case if by way of
rearrangement of work, the management of the appellant- G
company gives promotional opportunity to the existing
worker that does not bring about any violation of clause
7 of the said settlement rather such a rearrangement of
work will be in terms of clause 12. At the same time if
some of job of executive officers are the same as is done
by the existing worker that does not bring about such a H
    1164 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A violation of clause 7 as to constitute unfair labour
  practice. [Pa_ra 28] [1175-D-H; 1176-A-B]
         3.3. What is restricted under clause 7 is asking the
    officers to do the normal production work. There is no
    blanket ban in asking the officers from doing any
B   production work. Therefore, both clause 7 and clause 12
    of the said settlement must be reasonably and
    harmoniously construed to make it workable with the
    evolving work culture of the appellant-company in facing
    the new challenge in the emerging economic order which
c   has changed considerably from 1982. Even if it is
    assumed that 1982 agreement still subsists even then
    when a challenge is made of unfair labour practice on the
    basis of violation of a clause of 1982 agreement on the
    basis of a complaint filed in 2007, the Labour Court and
    the High Court must consider the said agreement
0
    reasonably and harmoniously keeping in mind the vast
    changes in economic and industrial scenario and the
    new challenges which the appellant-company has to face
    in the matter of reorganizing work in order to keep pace
    with the changed work culture in the context of scientific
E   and technological development. Also while adjudicating
    on the complaint of the union both the Labour Court and
    the High Court should have taken into consideration all
    subsequent settlements between the management of the
    said company and the union in 1985, 1988, 1992, 1997
F   and 2004. Both the Labour Court and the High Court
    failed to notice that in its complaint the union has
    accepted that they are not objecting to the promotion
    being granted to the workers. However, the said stand of
    the workers 11nion is not consistent with the nature of the
G   complaint filed before the Labour Court. [Para 29] [1176-
    C-G]
      3.4. The admitted facts are, there are 89 vacancies in
  the category of officers and 154 workers have applied.
  Therefore, everybody who has applied cannot be
H promoted, only a certain percentage of the workers
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1165
                 UNION &ANR.
applying can be promoted. Beith the Labour Court and A
the High court failed to take into consideration that the
workers voluntarily applied for the promotion scheme
pursuant to its introduction. Nowhere has it been alleged
by the workers that any force or pressure was brought
upon them to apply. The union is supposed to represent 8
the interests of the workers. When the workers
themselves do not consider the scheme as unfair to
them, can the union take upon them the burden of saying
that the scheme is unfair? In the instant case the
respondent-union is unfortunately seeking to do that. C
Both the Labour Court and the High Court have failed to
appreciate this basic fundamental issue in their
adjudication and have, therefore, come to an obviously
erroneous finding. Apart from the aforesaid clear factual
position legally also the management of the company is
not prevented from rearranging its business in the D
manner it considers it best, if in the process it does not
indulge in victimisation. [Para 30] [1176-H; 1177-A-E]
     3.5. In the instant case no malafide has been alleged
against the appellant-company. Nor it is anybody's case
that as a result of reorganization of its working pattern E
by introducing the scheme of promotion any person is
either retrenched or is rendered surplus. No allegation of
victimization has been made by the respondent-union in
its complaint. In the absence of any allegation of
victimization it is rather difficult to find out a case of unfair F
labour practice against the management in the context of
the allegations in the complaint. It is nobody's case that
the management is punishing any workmen in any
manner. Also no workmen of the appellant~company
made any complaint either to the management or to the G
union that the management is indulging in any act of
unfair labour practice. [Paras 22, 32] [1173-E-F; 1178-B]
    3.6. In the given situation, this Court ~annot
appreciate how by introducing the scheme of promotion
to which the workers overwhelmingly responded on their           H
    1166 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R


A own can it be said that the management has indulged in
  unfair labour practice. [Para 33) [1178-C]
       3.7. It is not the case of the respondent-union that its
  recognition is in any way being withdrawn or tinkered
  with. Nor is it the case of the respondent-union that it is
B losing its power of collective bargaining. It may be that
  the number of workmen is reduced to some extent
  pursuant to a promotional scheme to which the workmen
  readily responded. But no union can insist that all the
  workmen must remain workmen perpetually otherwise it
c would be an unfair labour practice. Workmen have a right
  to get promotion and improve their lot if the management
  offers them with a bona fide chance to do so. In fact if
  the order of the High Court is upheld, the same will go
  against the interest of erstwhile workmen of the appellant-
D company who have responded to the scheme of
  promotion. [Para 39] [1180-C-E]
       3.8. The High court failed to have a correct
  perspective of the questions involved in this case and
  came to an erroneous finding. The order of the High
E Court is set aside. However, it is made clear that in
  implementing the scheme the management of the
  appellant-company must not bring about any
  retrenchment of the workmen nor should the workmen
  be rendered surplus in any way. [Paras 40, 41) [1180-F-
    G]
F
        Parry & Co. Ltd. v. P.C. Pal & ors., AIR 1970 SC 1334:
    1969 SCR 976 and Hindustan Lever Ltd. v. Ram Mohan Ray
    and others 1973 (4) SCC 141: 1973 (3) SCR 924 - relied
    on.
G      Arkal Govind Raj Rao v. Ciba Geigy of India Ltd.,
    Bombay 1985 (3) SCC371: 1985 (1) Suppl. SCR 282 -
    distinguished.
          L.H. Sugar Factories and Oil Mills (P) Ltd., v. State of U.P.
    (1961) 1 LLJ 686 (HC All) - referred to.
H
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1167
                 UNION &ANR.

                   Case Law Reference:                            A
  1995 (3) Suppl. SCR 702  relied on   Paras 21,34
  1969 SCR 976             relied on   Paras 31,34
  1973 (3) SCR 924         relied on   Para 34
  1985 (1) Suppl. SCR 282  distinguished Para 35,36
                                                                  B
 (1961) 1 LLJ 686 (HC All) referred to Para 37
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8607 of 2011.
    From the Judgment & Order dated 12.3.2010 of the High
Court of Bombay in LPA No. 30 of 2010 in WP No. 1319 of           C
2009.
   Ashok Desai, P.V. Anaokar, Arun R. Pednekar, V.N.
Raghupathy for the Appellants.
    K.K. Venugopal, Bennet D. Costa, Nitin S. Tambwekar,
B.S. Sai, Rohit B, K. Rajeev, Mukti Choudhary for the             D
Respondents.
    The Judgment of the Court was delivered by
    GANGULY, J. 1. Leave granted.
    2. This appeal has been preferred from the order dated        E
12th March, 2010 of the Division Bench of the Bombay High
Court in Letters Patent Appeal No. 30/2010.
     3. The appellant no. 1 is a public limited company having
its registered office at 130, Pandurang Budhkar Marg, Dr.
Annie Besant Road, Worli, Mumbai and is engaged in the            F
business of manufacturing switchgears, switchboards, motors,
etc., of its many factories, one is located at Thane-Belapur
Road, Kalwe, Thane, and houses the plant that manufactures
switchboards for the company. The appellant employs about
2200 employees. The appellant no. 2 is the Chief Manager          G
(Personnel) of the said Company.
     4. Respondent no. 1, the contesting respondent, is a
registered trade union of the workers employed by the appellant
no.1. It is recognized under the provisions of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour       H
    1168 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A Practices Act, 1971 (hereinafter, referred to as the Maharashtra
  Act). Respondent no. 2, the pro forma respondent, represents
  the Switchboard Unit of the company, and is responsible for
  the routine functioning of the plant at Kalwe.
        5. In 2007 the trade union preferred a complaint under
B Section 28 of the Maharashtra Act for unfair labour practices,
  jointly and severally against the company, its Chief Manager for
  personnel (appellant no. 2) and its Works Manager (respondent
  no.2) before the learned Industrial Court, Thane, Maharashtra.
  The trade union impugned a notification dated 3rd May, 2007
C issued by the company for its workmen employed in its factory
  located in Kalwe, whereby applications were invited to appear
  for a selection process to undergo a two year long period as
  an 'Officer Trainee'. This training was to be in the fields of
  manufacturing, quality inspection and testing, logistics and
  technical sales order execution. The notification stated that after
D the successful completion of the said two years, the trainees
  were to be designated as 'Junior Executive Officers'. The case
  of the respondent-trade union is that though the designation of
  'Junior Executive Officer' was that of an officer belonging to the
  management cadre, in fact it was merely a nomenclature, with
E negligible content of managerial work. It was urged that the job
  description of a Junior Executive Officer was same as that of
  a workman, with little additional duties. Resultantly, the Junior
  Executive Officers of the factory were now to do the very same
  work that had always been done by the workmen.
F       6. It was submitted that such a move was, in effect an
  alteration in the conditions of service of the workmen, as some
  vacancies available for workmen in the switch board unit were
  to be reserved for officers from the management cadre.
  Resultantly there would have been a reduction in the job
G opportunities for workers. According to the trade union, any
  such change could not have been affected without giving the
  workmen a prior notice to such effect in terms of Section 9A
  of the Industrial Disputes Act, 1947. In this regard, the trade
  union referred to an agreement entered into between itself and
H the company in 1982. The said agreement, titled
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1169
    UNION & ANR. [ASOK KUMAR GANGULY, J.]

'Rationalization and Transport Settlement' has clause (7). The         A
said clause is as follows:-
     "7. That employees or officer or staff categories shall not
     be asked to do normal production work."
    7. The union also referred to clause (12) of the agreement
                                                                       8
which is.as. follows:-
     "12. That this settlement shall not be utilized for eliminating
     the further employment potential or promotional
     opportunities to the existing workmen."
     8.Clause (16) is set out herein below:                            c
     "16. This agreement shall come into force with effect from
     01.01.1981 except Clause No.14 which shall have effect
     from 16.11.1982 only and shall remain in operation until it
     is changed in accordance with the provisions of law.
                                                                       D
      9. Clause (7) ensures that the job opportunities for workers
shall not be reduced by the company by making its managerial
staff perform the workmen's job. Clause (16) ensured the
perpetuity of this Settlement until expressly overruled by a
subsequent Settlement. It was submitted by the trade union that        E
the change sought to be brought about by the company by its
notification dated 3rd May, 2007, was in violation of clause (7).
The trade union thus complained that the company and its two
officers resorted to unfair labour practices mentioned in items
9 and 10 of Schedule IV of the Maharashtra Act, and had
thereby violated the mandate of Section 27 of the Maharashtra          F
Act.
     10. It was further submitted that even if the said Settlement
was said to be non-binding, the impugned move was in violation
of Section 9A of the Industrial Disputes Act insofar as the
affected workmen had not been given any notice as                      G
contemplated by clause (a) of Section 9A read with Entry 11
of the Fourth Schedule of the Industrial Disputes Act.
     11. The Maharashtra Act was the first enactment of its kind
in the country to have been legislated by a State for the
prevention of unfair labour practices and consequent                   H
    1170 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A victimization. It was a comprehensive legislative device to weed
  out unfair labour practices, not only on the part of the employers,
  but also on the part of trade unions and the workmen. Chapter
  VI of the Act is titled 'Unfair Labour Practices'. Section 26, the
  first section of this chapter, defines an unfair labour practice
8 for the purposes of the Act. It reads as under:
        "26. Unfair Jabour practices: In this Act, unless the context
        requires otherwise, 'unfair labour practices' mean any of
        the practices listed in Schedules II, Ill and IV."
       12. Section 27 prohibits 'unfair trade practices'. The said
C Section is as follows:-
        "27. Prohibition on engaging in unfair Jabour practices:
        No employer or union and no employees shall engage in
        any unfair labour practice."
D        13. Section 28 deals with the procedure for preferring a
    complaint against an unfair labour practice. Clause (1) of this
    section reads as follows:
        "28. Procedure for dealing with complaints relating to
        unfair Jabour practices: (1) Where any person has
E       engaged in or is engaging in any unfair labour practice,
        then any union or any employee or any employer or any
        Investigating Officer may, within ninety days of the
        occurrence of such unfair labour practice, file a complaint
        before the Court CO!l)petent to deal with such complaint
        either under section 5, or as the case may be, under
F
        section 7, of this Act:
               Provided that, the Court may entertain a complaint
        after the period of ninety days from the date of the alleged
        occurrence, if good and sufficient reasons are shown by
G       the complainant for the late filing of the complaint."
        14. In the instant case the complaint has been filed under
   Section 28 read with Section 30(2) of the Maharashtra Act by
  ·the respondent-union and in the instant complaint the
   respondent-union alleged that the management is indulging in
H unfair labour practices under item Nos.9 and 10 of Schedule
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1171
    UNION & ANR. [ASOK KUMAR GANGULY, J.]

IV of the Maharashtra Act (para 3(a) of the complaint). Schedule    A
IV of the Maharashtra Act categorizes the general unfair labour
practices on the part of the employers. Under Schedule IV, item
Nos.9 and 10, in respect of which unfair labour practices have
been alleged, provide as follows:
     "9. Failure to implement award, settlement or agreement.       B
     10. To indulge in act of force or violence."
       15. In paragraph 3 (b) of the complaint it has been alleged
that the respondent-union is anticipating that the management
 is likely to reduce the work of the workmen category and give
it to the newly recruited officer trainees. It has also been alleged C
that by doing so the management is acting in violation of
Section 9(A) of Industrial Disputes Act, 1947 by bringing about
a change in service condition without giving any notice. In so
far as this allegation in the complaint is concerned, the order
of Industrial Court, Thane, shows that it did not find that the D
management was in any way trying to change the co.ndition of
the service or it was acting in violation of the provisions of
Section 9(A).
     16. The precise findings of the Labour Court, Thane while
dealing with the complaint of the Union about change of             E
condition of service under Section 9(A) of the Industrial
Disputes Act are as under:
    "...... Considering the evidence that even earlier also, the
    company has reduced the strength of· the employees in
    various departments, they were transferred from one             F
    section to other section, the promotions are given from the
    category of workmen to the category of officers and
    therefore, it cannot be said that there's any breach under
    S.9A of the Industrial Dispute Act, 1947."
     17. Therefore, the complaint of the respondent-union, which G
ultimately found favour with Industrial Court as unfair labour
practice, is the attempt made by the management in not
implementing clause 7 of settlement.
     18. In this aspect the exact finding of the Labour Court is
as follow:                                                          H
    1172 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.


A       "...... Considering the nature of work to be performed by
        these Officer's Trainee, certainly it shows that there's
        breach of clause 7 of the ~ettlement dated 16.11.1982.
        As such, the Complainant Union has succeeded to prove
        the unfair labour practice under Item 9 of Schedule IV of
B       the Act."
        19. Before proceeding further in this matter, this Court
  proposes to examine the concept of unfair labour practice and
  the way it has been dealt with under the Maharashtra Act and
  also under the ID Act. Any unfair labour practice within its very
c concept must have some elements of arbitrariness and
  unreasonableness and if unfair labour practice is established
  the same would bring about a violation of guarantee under
  Article 14 of the Constitution. Therefore, it is axiomatic that
  anyone who alleges unfair labour practice must plead it
D specifically and such allegations must be established properly
  before any forum can pronounce on the same. It is also to be
  kept in mind that in tlie changed economic scenario, the
  concept of unfair labour practice is also required to be
  understood in the changed context. Today every State, which
  has to don the mantle of a welfare state, must keep in mind
E that twin objectives of industrial peace and economic justice
  and the courts and statutory bodies while deciding what unfair
  labour practice is must also be cognizant of the aforesaid twin
  objects.
       20. Unfair labour practice, for the first time, was dP.fined
F arid codified in the Maharashtra Act referred to hereinabove.
  But in so far as the Industrial Disputes Act, Central Law, is
  concerned, unfair labour practice was codified and brought into
  force by the Amending Act, 46 of 1982 with effect from 21st
  August 1984.
G        21. Clause (ra) of Section 2 of Industrial Disputes Act
    defines unfair labour practice to mean the practices specified
    in the fifth schedule and the fifth' schedule was also inserted by
    the said Amending Act. The fifth schedule has two parts. The

H
   SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1173
      UNION & ANR. [ASOK KUMAR GANGULY, J.]

  first part refers to unfair labour practices on the part of the       A
  employers and trade union of employers and the second part
  refers to unfair labour practices on the part of the workmen and
  trade union of workmen. However, there is some difference
  between the provisions relating to unfair labour practices in the
  Maharashtra Act and those in Central Act i.e. Industrial Disputes     8
  Act. The Industrial Disputes Act prohibits an employer or
  workmen or a trade union from committing any unfair labour
  practice while the Maharashtra Act prohibits ar. employer or
  union or an employee from engaging in any unfair labour
  practice. The prohibition under the Industrial Disputes Act is
  aimed at preventing the commission of an unfair labour practice       C
· while the Maharashtra Act mandates that the concerned parties
  cannot be engaged in any unfair labour practice. The word
  'engage' is more comprehensive in nature as compared to the
  word 'commit' [See Hindustan Lever Ltd. v. Ashok Vishnu Kate
  & others reported in 1995 (6) SCC 326 at para 37, page 345            D
  of the report].
       22. In the instant case no allegation of victimization has
 been made by the respondent-union in its complaint. In the
 absence of any allegation of victimization it is rather difficult to
 find out a case of unfair labour practice against the                  E
 management in the context of the allegations in the complaint.
 It is nobody's case that the management is punishing any
 workmen in any manner. It may be also mentioned here that
 no workmen of the appellant-company has made any complaint
 either to the management or to the union that the management           F
 is indulging in any act of unfair labour practice.
     23. Even then the Labour Court, Thane, has come to
 certain findings of unfair labour practice against the
 management and .which have been referred to above.
      24, The appellant-company challenged the finding of the           G
 Labour Court before the High Court by filing a writ petition. The
 learned Single Judge in his judgment noted that the main
 grievance of the respondent-union was that in the process of
 reorganizing its work pattern the management of the appellant-
 company was reducing the number of posts of workmen and                H
     1174 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A some of the work which were done by the workmen are to be
  done by the officers and the grievance of the respondent-union
  was that this was contrary to clause 7 of settlement dated 16th
  November, 1982 (hereinafter 'the said settlement'). Ultimately,
  the learned Single Judge came to a finding that though the post
B which is introduced by the management is named Junior
  Executive, the said post was different from the post of Junior
  Executive which was in existence and after saying so the
  learned Single Judge held, "the Tribunal has rightly held that this
  amounted to unfair labour practice under item 9 of Schedule
  IV of the said Act" (para 9). The learned Single Judge also
C noted that even though promoted as Junior Executive the
  present workers will be expected to do a part of the work of
  the workman along with some additional work. This, according
  to the learned Single Judge, was in breach of clause 7 of the
  said settlement.
D       25. The appellant-company also challenged the said order
  ·of the learned Single Judge before the Division Bench. The
   Division Bench came to a finding that whatever work is given
   to the officers/trainees in addition to the present work was the
   work of a workman. So even if the workmen are promoted they
E will be doing the job of a workman with some additional work
   and the Division Bench also came to the same finding.that this
   will be in violation of clause 7 of the agreement and thus
   considered it unfair labour practice. With these findings, the
   Division Bench affirmed the finding of the learned Single Judge.
F        26. Mr. K.K. Venugopal, learned Senior Counsel
    appearing on behalf of the respondent-union urged that in
    exercise of its powers under Article 136 this Court normally
    does not interfere with concurrent finding and, therefore, should
    not interfere with the concurrent finding in the :nstant case.
G        27. It is true that this Court normally does not upset a
 . concurrent finding but there is no such inflexible rule. The
   jurisdiction of this Court under Article 136 is a special
   jurisdiction. This is clear from the telCt of the Article itself which
   starts with a non-obstante clause. This is a jurisdiction
H conferring residual power on this Court to do justice and is to
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1175
   ' UNION & ANR. [ASOK KUMAR GANGULY, J.]

be exercised solely on discretion to be used by this Court to A
advance the cause of justice. This Article does not confer any
right of appeal on any litigant. But it simply clothes this Court
with discretion which is to be exercised in an appropriate case
for ends of justice. Therefore, there can be no hard and fast
rule in the exercise of this jurisdiction. Just because the findings B
which are assailed in a special leave petition are concurrent
cannot debar this Court from exercising its jurisdiction if the
demands of justice require its interference. In a case where the
Court finds that the concurrent finding is based on patently
erroneous appreciation of basic issues involved in an
adjudication, the Court may interfere. In the instant case the C
Court proposes to interfere with the concurrent finding for the
reasons discussed hereinbelow.
     28. Admittedly, the finding of unfair labour practice against
the appellant-company by the High Court and the Labour Court
                                                                   0
is based on the premise that the appellant-company acted in
breach of clause 7 of the agreement. It is well known that an
industrial settlement is entered into between the management
and labour for maintaining industrial peace and harmony.
Therefore, any attempt by either the management or the
workmen to violate such a settlement may lead to industrial E
unrest and amounts to an unfair labour practice. Here the charge
of unfair labour practice against the appellant-company is that
it has violated item 9 of Schedule IV of the Maharashtra Act.
Item 9 has been set out hereinabove and the purport of item 9
is that any failure to implement an award or settlement or F
agreement would be an unfair labour practice. In the instant
case while considering clause 7 of the said settlement the
Courts have not taken into consideration clause 12. Both
clauses 7 and 12 have been set out hereinabove. If a
harmonious reading is made of clauses 7 and 12 it will be clear G'
that clause 7 cannot be given an interpretation which makes
clause 12 totally redundant. Clause 7 contains a prohibition
against the employees or officers or members of the staff of
the appellant-company from doing normal production work. But
that cannot be read in such a manner as to nullify the purport
 of clause 12 which reserves the promotional employment H
    1176 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A potential of existing workmen. So in the instant case if by way
  of rearrangement of work, the management of the appellant-
  company gives promotional opportunity to the existing worker
  that does not bring about any violation of clause 7 of the said
  settlement rather such a rearrangement of work will be in terms
8 of clause 12. At the same time if some of job of executive
  officers are the same as is done by the existing worker that
  does not bring about such a violation of clause 7 as to
  constitute unfair labour practice.
        29. What is restricted under clause 7 is asking the officers
c to do the normal production work. There is no blanket ban in
  asking the officers from doing any production work. Therefore,
  both clause 7 and clause 12 of the said settlement must be
  reasonably and harmoniously construed to make it workable
  with the evolving work culture of the appellant-company in facing
  the new challenge in the emerging economic order which has
0
  changed considerably from 1982. Even if we assume that 1982
  agreement still subsists .even then when a challenge is made
  of unfair labour practice on the basis of violation of a clause of
  1982 agreement on the basis of a complaint filed in 2007, the
  Labour Court and the High Court must consider the said
E agreement reasonably and harmoniously keeping in mind the
  vast changes in economic and industrial scenario and the new
  challenges which the appellant-company has to face in the
  matter of reorganizing work in order to keep pace with the
  changed work culture in the context of scientific and
F technological development. This Court also finds that while
  adjudicating on the complaint of the union both the Labour
  Court and the High Court should have taken into consideration
  all subsequent settlements between the management of the
  said company and the union in 1985, 1988, 1992, 1997 and
G 2004. Both the Labour Court and the High Court failed to notice
  that in its complaint the union has accepted that they are not
  objecting to the promotion being granted to the workers.
  However, the said stand of the workers union is not consistent
  with the nature of the complaint filed before the Labour Court.
H       30. The admitted facts are, there are 89 vacancies in the
 SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1177
   UNlpN & ANR. [ASOK KUMAR GANGULY, J.]
category of officers and 154 workers have applied. Therefore, A
everybody who has applied cannot be promoted, only a certain
percentage of the workers applying can be promoted. Both the
Labour Court and the High court failed to take into
consideration that the workers voluntarily applied for the
promotion scheme pursuant to its introduction. Nowhere has it B
been alleged by the workers that any force or pressure was
brought upon them to apply. In the background of these facts
the question is when the workers applied on their own to a
scheme of promotion introduced by the management and they
do not make any complaint either to the union or to the
management in respect of the introduction of the scheme, can C
it be said that by introducing a promotional scheme the
management is indulging in unfair labour practice? The union
is supposed to represent the interests of the workers. When
the workers themselves do not consider the scheme as unfair
to them, can the union take upon them the burden of saying that D
the scheme is unfair? In the instant case the respondent-union
is unfortunately seeking to do that. Both the Labour Court and
the High Court have failed to appreciate this basic fundamental
issue in their adjudication and have, therefore, come to an
obviously erroneous finding. Apart from the aforesaid clear E
factual position legally also the management of the company
is not prevented from rearranging its business in the manner it
considers it best, if in the process it does not indulge in
victimisation.
     31. Reference in this connection may be made to a               F
decision of this Court in Parry & Co. Ltd. v. P.C. Pal & ors.,
reported in AIR 1970 SC 1334, a three-Judge Bench of this
Court held as follows:-
          "lt is well established that it is within the managerial
    discretion of an employer to organize and arrange his            G
    business in the manner he considers best. So long as that
    is done bona fide it is not competent of a tribunal to
    question its propriety. If a scheme for such reorganization
    results in surplusage of employees no employer is
    expected to carry the burden of such economic dead               H
    1178 SUPREME COURT REPORTS (2011] 15,(ADDL.) S.C.R.


A       weight and retrenchment has to be accepted as inevitable,
        however unfortunate it is ... •
           '
                                (.para 14, page 1341 of the report)
         32. In the instant case no malafide has been alleged
    against the appellant-company. Nor it is anybody's case that
8
    as a result of reorganization of its working pattern by
    introducing the scheme of promotion any person is either
    retrenched or is rendered surplus.
       33. In the given situation, this Court cannot appreciate how
C by introducing the scheme of promotion to which the workers
  overwhelmingly responded on their own can it be said that the
  management has indulged in unfair labour practice.
                            I

        34. Similarly, in the case of Hindustan Lever Ltd. v. Ram
  Mohan Ray and others reported in 1973 (4) SCC 141, another
o three-Judge Bench of this Court held that nationalization and
  standardization of work by the management by itself would not
  fall under item 10 of Schedule IV of Industrial Disputes Act
  unless it is likely to lead to retrenchment of workers. Relying
  on the decision in Parry (supra) this Court held in Hindustan
E Liver (supra) that since the reorganization has not brought
  about any change adversely affecting the workers and there has
  been no retrenchment, similar principles are applicable here.
       35. Mr. K.J<. Venugopal, learned Senior Counsel
  appearing for the union in support of his submission relied on
F a decision of this Court in the case of Arka/ Govind Raj Rao
  v. Ciba Geigy of India Ltd., Bombay reported in 1985 (3) SCC
  371. In that case the question which was considered by this
  Court was where an employee was performing multifarious
  duties and the issue is whether he is a workman or not the test
  to be applied is what was the primary, basic or dominant nature
G of the duties for which the workman was employed. This Court
  came to the conclusion that when the primary and basic duties
  of an employee are clerical but certain stray assignments are
  given to him to create confusion, the Court may remove the
  gloss to find out the reality.
H
  SIEMENS LTD. & ANR. v. SIEMENS EMPLOYEES 1179
     UNION & ANR. [ASOK KUMAR GANGULY, J.)
      36.ln Arka/ Govind Raj (supra) the aforesaid question A
arose out of the termination of service of the appellant Govind
Raj as his termination led to an industrial dispute. In that dispute
numerous primary objections were raised by Ciba Geigy and
one of them was that Govind Raj was not a workman within the
meaning of Section 2(s) of the Industrial Disputes Act. In that 8
context, this Court, after analyzing the evidence, came to a.
finding that Govind Raj was a workman within the meaning of
the Act and held that netther the Labour Court nor the High Court
came to a correct finding. With that finding this Court remanded
the matter to the Labour Court for deciding the dispute in
accordance with its judgment. The said decision has no bearing C
on the issues with which we are concerned in this case. It is
well known that the ratio of a decision has to be appreciated
in its context. Going by that principle, we do not find that the
decision in Arkal Govind Raj (supra) is of any assistance to
the respondents.                                                     D
     37. Mr: Venugopal also relied on the commentary of K.D.
Srivastava on Law Relating to Trade Unions and Unfair Labour
Practices in India (Fourth Edition). The learned counsel relied
on a decision of the Allahabad High Court in the case of L.H.
Sugar Factories and Oil Mills (P) Ltd., v. State of U.P., (1961)    E
 1 LLJ 686 (HC All). Some of the observations made in the said
judgment which have been quoted in the commentary of K.D.
Srivastava are as follows:-
    •... If an employer deliberately uses his power of promoting
    employees in a manner calculated to sow discord among           F
    his workmen, or to undermine the strength of their union,
    he is guilty of unfair labour practice."
                                                     (page 402)
     38. In the instant case no malafide has been alleged by G
the union against the appellant-company in the matter of
reorganization of its work. It is also nobody's case that as a
result _of the reorganization of the work any attempt is made by
the appellant-company to create discord amongst the workmen
so as to undermine the strength of the union. Apart from that
the facts in the case of L.H. Sugar Factories (supra) are totally H
    1180 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A different. In L.H. Sugar Factories (supra) the company
  wrongfully deprived ten workers of their promotion to the post
  of driver,cum-assistant fitter while preferring eleven other
  workmen over them. This led to an industrial dispute. Therefore,
  those observations of Allahabad High Court in a totally different
  fact situation are not attracted in the present case to make out
8
  a case of unfair labour practice. We f~il to appreciate the
  relevance of the aforesaid decision to the facts of the present
  case.
        39. At the same time it is not the case of the respondent-
C union that its recognition is in any way being withdrawn or
  tinkered with. Nor is it the case of the respondent-union that it
  is losing its power of collective bargaining. It may be that the
  number of workmen is reduced to some extent pursuant to a
  promotional scheme to which the workmen readily responded.
  But no un(on can insist that all the workmen must remain
D workmen perpetually otherwise it would be an unfair labour
  practice. Workmen have a right to get promotion and improve
  their lot if the management offers them with a bona fide chance
  to do so. In fact if the order of the High Court is upheld, the
  same will go against the interest of erstwhile workmen of the
E appellant-company who have responded to the scheme of
  promotion.
        40. For the reasons aforesaid, we are of the view that the
  High court failed to have a correct perspective of the questions
  involved in this case and obviously came to an erroneous
F finding.
      41. We allow the appeal and set aside the order of the
  High Court in which has merged the order of the Labour Court.
  However, we make it clear that in implementing the scheme the
  management of the appellant-company must not bring about
G any retrenchment of the workmen nor should the workmen be
  rendered surplus in any way.
       . 42. The appeal is, thus, allowed. There will be no order as
   to cost.
H B.B.B.                                          Appeal allowed.