TaxTMI 
TaxTMI 
2015 (4) TMI 1374
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....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: The appellant-Company, M/s. 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 M/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 appellant in this regard, to the effect that they would be employed under its management without any 3 interruption in their services. 4. On 30.08.2004, the appellant-Company acquired the erstwhile manufacturing facility of M/s. Wyeth Ltd. - 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-C....
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....e raised by or on their behalf by the respondent-Union. On 12.12.2005, the respondent-Union, 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 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. 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 before the High Court urging various legal grounds and questioning the correctness of the same. 10. The High Court in exercise of its power quashed the order dated 14.8.2006 passed by Deputy Commissioner of Labour, Mumbai, who has refused to make an order of reference to the Industrial Tribunal for i....
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....rst respondent-Union did not wish to pursue the cases. Therefore, the demand raised by the first respondent-Union on behalf of the concerned workmen 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 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 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 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 behalf of the concerned workmen. 13. It is further contended by the learned senior counsel on behalf of the appellant that the first respondent-Union has not made any alleg....
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....trial 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 services and withdrawn all the monetary benefits which were paid to them by the appellant, they cannot raise the industrial dispute in this regard as the same C.A. No. 246 of 2009 13 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. [(2006) 5 SCC 759] and Vice-Chairman & Managing Director, A. P . S. I. D. C. Ltd. & Anr. v. R. Varaprasad & Ors. [(2003) 11 SCC 572], 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 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 Association v. Ajit Kumar Barat & Ors. [(2000) 3 SCC 93] and ANZ Grindlays Bank Ltd. v. Union of India & Ors. [(2005) 12 SCC 738] Therefore, the learn....
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....s to the appellant-Company which fact is 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 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 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-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 of the Company only without the....
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.... 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 Secretary and to act in the matter of the forced termination of the concerned workmen from their services. The petition submitted to the Conciliation Officer by the respondent-Union 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 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 appell....
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.... 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 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 under Section 10(1) (d) of the Act. Thus, the order of refusal to make an order of reference of the existing industrial 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 an order of reference regarding the industrial dispute to the Industrial Tribunal. 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 order of refusal to make an order of reference regarding the industrial dispute raised by the first respondent-U....
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....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 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 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 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 the VRS was framed by it and converting the signatures of the concerned workmen obtained on the blank papers amounts to forced termination of the services of the concerned workmen which is a disputed question ....
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....;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 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. [(1985) 3 SCC 189], the relevant para of which reads thus: "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 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 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....
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....the voluntary retirement as pleaded by them and other benefits from the appellant as per the case of National Insurance Co. Ltd. (supra) . 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 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 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 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 pe....
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....rt of Appeal in Connecticut 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 India [(2013) 6 SCC 278] and Greater Mohali Area Development Authority v. Manju Jain [(2010) 9 SCC 157], 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 Jagad [(2011) 12 SCC 695], it has been held by this Court that a new ground raising pure legal issue for which no inquiry or proof is required, can be raised at any stage. Further, in the case of Port Trust v Hymanshu International [(1979) 4 SCC 176], this Court has held thus: "2 ....... The plea of limitation based on this section is 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 practice of not relying upon te....
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....or 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 voluntary retirement letters from the concerned workmen, whereas, the proceedings under the MRTU & PULP Act are in respect of the alleged transactions between the appellant-Company and M/s Wyeth Ltd. which has resulted in the transfer of the services of the workers from M/s. Wyeth Ltd. to the 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 20th/21st April, 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 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 actio....