As per case facts, the petitioner union challenged an Industrial Court's judgment dismissing its complaint against the respondent company. The dispute started after the previous union's settlement expired, and the ...
wp13442-2016-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13442 OF 2016
Poona Employees’ Union,
through it’s General Secretary,
Sudhakar Damle, having office
at “Shramesh” Shree Anand Niwas,
Vithalwadi Road, Akurdi,
Pune 411 035 … Petitioner
Vs.
Force Motors Limited,
having it’s factory at
Mumbai-Pune Road, Akurdi,
Pune 411 035 … Respondent
Ms. Jane Cox with Mr. Vinayak Suthar i/by Mr.
Ghanshyam Thombare for the petitioner.
Mr. Sudhir Talsania, Senior Advocate with Mr. Vishal
Talsania, & Mr. Netaji Gawde i/by M/s. Sanjay Udeshi
& Co., for the respondent.
CORAM :AMIT BORKAR, J.
RESERVED ON :MARCH 27, 2026.
PRONOUNCED ON:APRIL 9, 2026
JUDGMENT:
1.By the present writ petition filed under Articles 226 and 227
of the Constitution of India, the petitioner has challenged the
judgment and order dated 16 December 2014 passed by the
Industrial Court in Complaint (ULP) No. 229 of 2008.
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.04.09
11:40:42 +0530
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2.The brief facts giving rise to the present petition, as set out
by the petitioner, are as follows. The petitioner is a registered trade
union representing a majority of the employees employed in the
respondent–factory. Prior to the year 2002, the employees were
members of Bhartiya Kamgar Sena, which was a recognised union.
The last settlement executed with the said recognised union
expired on 31 December 2003. Thereafter, no settlement has been
executed either with the petitioner-union or otherwise, nor has
there been any revision in the service conditions or pay scales of
the employees. The service conditions of the employees continue
to be governed by the Model Standing Orders framed under the
Industrial Employment (Standing Orders) Act, 1946. It is the case
of the petitioner that in or about the year 2002, a substantial
number of employees of the respondent–company resigned from
the membership of Bhartiya Kamgar Sena and joined the
petitioner-union. The petitioner thereafter filed an application
before the Industrial Court at Pune seeking de-recognition of
Bhartiya Kamgar Sena. By an order dated 22 March 2006, the
Industrial Court cancelled the recognition granted to Bhartiya
Kamgar Sena and accorded recognition to the petitioner-union.
The said order was challenged both by the respondent–company
and Bhartiya Kamgar Sena by filing separate writ petitions, which
came to be allowed by judgment and order dated 2 February 2009.
It is further the case of the petitioner that although by an order
dated 14 October 2004 passed by this Court in Writ Petition No.
8140 of 2004, Bhartiya Kamgar Sena was permitted to negotiate
with the management, no settlement was arrived at. Instead, the
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respondent–company unilaterally introduced a scheme titled
“Helping Hand Group Incentive Scheme” with effect from 1 July
2007. The said scheme was based on a “Group Performance
Index”, which was determined solely by the respondent–company.
Under the scheme, workmen were classified into different groups,
namely production group, production support group, and standard
managerial support group. The terms and conditions of the scheme
were unilaterally determined by the respondent–company. No
undertaking was required from individual workmen for availing
the benefits under the scheme. Incentive amounts were paid to all
workmen except two. The benefits under the scheme were
extended for the period from 1 July 2005 to 30 September 2006.
3.The petitioner has further contended that this Court, by an
interim order dated 27 April 2006 passed in Writ Petition Nos.
2907 of 2006 and 2878 of 2006, directed the parties to maintain
status quo as on that date. It is alleged that in breach of the said
order, the respondent–company discontinued the earlier scheme on
14 October 2006 and introduced another scheme titled “Helping
Hand New Group Incentive Scheme”, which was operative only for
the month of October 2006. Even under this scheme, no
undertaking was required from the workmen. Thereafter, the
respondent–company represented before the authorities that the
scheme was discontinued due to demand from workers. In
November 2006, the respondent–company introduced yet another
scheme styled as “Notice Scheme”. The said scheme retained the
same grouping of workmen and incentive structure based on the
Group Performance Index, which continued to be determined by
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the respondent–company. However, under this scheme, individual
workmen were required to submit undertakings for availing the
benefits. It is alleged that the scheme was not voluntary in nature,
as workmen were compelled to join groups and achieve production
targets irrespective of their consent. The petitioner contends that
the scheme was introduced in violation of the status quo order
dated 27 April 2006 and was in substance a productivity-linked
scheme imposed unilaterally by the management, with all
operational aspects being controlled by the Chairman and
Managing Director. It is further the case of the petitioner that
under the “Notice Scheme”, special personal pay and incentives
were paid to workmen based on the performance index of the
respective group, as determined by the respondent–company. The
functioning of the scheme lacked transparency. Only limited
information was displayed through notices indicating division-wise
Group Performance Index and incentive amounts, without
disclosing names of individual beneficiaries. Despite specific
directions, the respondent–company did not furnish complete
details of workmen who were granted or denied the benefits under
the scheme. The petitioner submits that the discriminatory
implementation of the scheme led to dissatisfaction among
workmen, many of whom were arbitrarily denied benefits. In April
2008, affected workmen raised demands before the management.
As there was no response from the respondent–company, the
concerned workmen approached the Labour Officer, Pune by
submitting intervention letters. A list of such workmen was
produced before the Industrial Court at Exhibit U-27 dated 10 July
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2014. The respondent–company, by its reply dated 22 July 2008,
stated that those workmen who were denied benefits were
members of the petitioner-union.
4.In the aforesaid circumstances, the petitioner-union filed
Complaint (ULP) No. 229 of 2008 under Items 3 and 9 of Schedule
IV of the MRTU and PULP Act, 1971. The respondent–company
filed its written statement denying the allegations and contended
that benefits under the scheme were extended to all workmen who
had submitted undertakings within the stipulated time, namely 10
November 2006. The petitioner, however, relied upon documents
produced by the respondent–company to demonstrate that certain
workmen, including one Shri Gawde, had submitted undertakings
beyond the stipulated date and yet were granted benefits
retrospectively. In support of their respective cases, three witnesses
were examined on behalf of the petitioner-union, while one
witness, namely Mr. Unni, was examined on behalf of the
respondent–company. It is further stated that the appeal preferred
by the petitioner-union seeking recognition came to be dismissed
by the Supreme Court by judgment dated 1 December 2015.
Thereafter, on 4 April 2016, the respondent–company and Bhartiya
Kamgar Sena entered into a settlement and initiated steps to
obtain an award in terms of the said settlement in a reference
proceeding in which Bhartiya Kamgar Sena was not a party.
5.By the impugned judgment and order dated 16 December
2014, the Industrial Court dismissed the complaint filed by the
petitioner. Being aggrieved thereby, the petitioner has approached
this Court by way of the present writ petition.
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6.Ms. Jane Cox, learned Advocate appearing for the petitioner,
submitted that the principal grievance of the petitioner pertains to
the requirement imposed upon the workmen to execute an
undertaking under the Notice–Group Incentive Scheme dated 30
October 2006. She submitted that, unlike the earlier incentive
schemes implemented by the respondent–company, the said
scheme contained a stipulation that if any workman engaged in
any act which, in the opinion of the company, adversely affected
discipline, punctuality, quality improvement efforts or safety
requirements, such workman would not only be disqualified from
receiving the benefits under the scheme but would also be liable
for recovery of all financial benefits extended to him from the
inception of the scheme. She submitted that no such provision
existed in the earlier incentive schemes, including the scheme of
July 2005, and that the scheme introduced on 14 October 2006
was subsequently replaced by the impugned scheme dated 30
October 2006.
7.She further submitted that the introduction of the provision
enabling retrospective recovery of amounts paid, based on the
unilateral and subjective satisfaction of the respondent–company
regarding alleged non-compliance with discipline, efficiency,
punctuality or safety norms, assumes significance in the backdrop
of the pending dispute relating to recognition of the petitioner-
union before this Court. She submitted that by order dated 22
March 2006, the Industrial Court, Pune had granted recognition to
the petitioner-union in place of Bhartiya Kamgar Sena. The said
order was challenged by Bhartiya Kamgar Sena in Writ Petition No.
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2878 of 2006 and by the respondent–company in Writ Petition No.
2907 of 2006. By an interim order dated 27 April 2006, this Court
directed maintenance of status quo and further directed that no
party shall make any claim or enter into negotiations. It was
submitted that taking advantage of the said situation, the
respondent–company introduced the scheme dated 30 October
2006. It was further pointed out that the earlier schemes were
styled as “Helping Hand Schemes”, whereas the impugned scheme
was not described as such and was instead introduced as a
“Notice” and “Group Incentive Scheme”. It was therefore
contended that the respondent–company cannot now contend that
the said scheme was in continuation of the earlier Helping Hand
Schemes.
8.Learned counsel submitted that the concerned workmen
refrained from executing the undertaking under the impugned
scheme due to a bona fide apprehension that, in the context of the
pending and contested litigation regarding recognition, the
respondent–company would invoke its unilateral powers under
clause 4(g) of the scheme to selectively target and victimise
members of the petitioner-union. She submitted that the
respondent–company has sought to justify the scheme as a
benevolent measure intended to confer benefits upon workmen in
the absence of a negotiated settlement. She submitted that such
justification is misconceived in law, inasmuch as a settlement
under Section 2(p) of the Industrial Disputes Act, 1947 continues
to bind the parties unless replaced by a subsequent settlement or
an award under Section 10 of the said Act. She further submitted
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that the scheme was not benevolent in nature but was introduced
with mala fide intent, conferring upon the management wide and
unguided powers to control and victimise workmen, particularly
members of the petitioner-union.
9.She further submitted that under the scheme, the
respondent–management unilaterally constituted groups of
workmen for carrying out work on the shop floor. She submitted
that even those workmen who did not accept the scheme and did
not execute the undertaking were nevertheless compelled to work
within such groups. She submitted that such workmen were not
merely working in proximity to those who had accepted the
scheme, but were in fact working within the same groups and
contributing to the collective productivity, on the basis of which
incentives were paid to those who had accepted the scheme.
10.She submitted that the Group Incentive Report issued by the
respondent–company, namely the declaration of incentive dated 10
February 2008 for the month of January 2008, demonstrates that
under the relevant cost centre, the concerned workmen were
grouped together. She invited attention to the wage slips of certain
workmen for the said period to demonstrate that both
participating and non-participating workmen were working in the
same group. She further clarified that the production allowance
reflected in the wage slips was independent of the incentive
scheme and was payable under earlier settlements based on
efficiency levels. She also submitted that certain workmen were
rotated across departments and groups from time to time.
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11.She submitted that the aforesaid facts clearly demonstrate
that the workmen who did not accept the scheme were placed in a
position where they were compelled to contribute to the group
output, without being extended the corresponding benefits of the
scheme. She submitted that such treatment has resulted in grave
prejudice and discrimination. She further submitted that the
prejudice was aggravated subsequently, when pursuant to the
settlement dated 29 October 2019, a portion of the benefits under
the scheme, described as “Special Personal Pay”, was merged into
the basic pay. According to her, this has led to disparity in basic
wages among workmen with similar length of service and has
adversely affected calculations of provident fund and gratuity.
12.She submitted that although the Industrial Court observed,
on the basis of certain admissions in cross-examination, that there
was no compulsion upon the workmen either to accept or reject
the scheme, the material aspect remains that the workmen who
did not accept the scheme were nevertheless required to work in
the same groups and contribute to the production which formed
the basis for payment of incentives to others. She submitted that
refusal to perform such work would have exposed the workmen to
disciplinary action, including issuance of charge-sheets under the
applicable Standing Orders for insubordination or disobedience of
lawful instructions.
13.She submitted that the impugned order does not adequately
consider the aforesaid aspect. She pointed out that in paragraph
28 of the impugned order, the Industrial Court merely recorded the
contention regarding the group nature of the scheme but
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proceeded to hold that there was no reason for workmen not to
execute the undertaking. She further submitted that in paragraph
29, the Industrial Court held that only those workmen who had
formally accepted the scheme were entitled to its benefits. She
submitted that the Industrial Court has failed to address the core
issue, namely that the obligation to contribute to production was
imposed upon all workmen, while benefits were selectively denied,
thereby constituting an unfair labour practice. She further
submitted that the Industrial Court has also failed to consider the
significance of the clause permitting retrospective recovery of
incentive amounts based on the unilateral assessment of the
management.
14.She submitted that insofar as the finding of the Industrial
Court regarding absence of specific evidence as to which workmen
were denied benefits is concerned, the relevant data was in the
exclusive possession of the respondent–company. She submitted
that in any event, if such factual determination is considered
necessary, the matter may be remanded for that limited purpose.
She further submitted that the Industrial Court has already held
that the cause of action is a continuing one and the complaint is
not barred by limitation. The said finding has not been challenged
by the respondent–company and has therefore attained finality.
She submitted that the present petition, though filed on 24 June
2016 against the impugned order dated 16 December 2014,
cannot be said to suffer from delay, in view of the intervening
circumstances, including pendency of recognition proceedings
which culminated in the decision of the Supreme Court dated 1
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December 2015, as well as subsequent negotiations and disputes
culminating in a settlement dated 5 May 2016. She therefore
submitted that there is no delay in filing the present petition and,
in any event, any delay deserves to be condoned in the interest of
justice.
15.Mr. Talsania, learned Senior Advocate appearing for the
respondent–company, submitted that at the relevant time the
respondent–company employed approximately 1500 workmen
whose service conditions were governed by their contracts of
employment, the Model Standing Orders framed under the
Industrial Employment (Standing Orders) Act, 1946, and
settlements executed with Bharatiya Kamgar Sena, which was the
recognised union. He submitted that Bharatiya Kamgar Sena had
been granted recognition by the Industrial Court by order dated 18
November 1998 and that the last settlement with the said union
expired on 31 December 2003. According to him, in or about
December 2002, certain dissatisfied workmen formed the
petitioner-union and initiated a movement of non-cooperation
with the respondent–company with a view to secure recognition
and compel negotiations. The petitioner thereafter initiated
proceedings before the Industrial Court seeking derecognition of
Bharatiya Kamgar Sena and grant of recognition to itself. The
Industrial Court by order dated 22 March 2006 cancelled the
recognition of Bharatiya Kamgar Sena and granted recognition to
the petitioner-union, which order was challenged by both the
respondent–company and Bharatiya Kamgar Sena before this
Court. During the pendency of those proceedings, this Court by
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order dated 27 April 2006 directed the parties to maintain status
quo and restrained them from entering into negotiations. In this
background, and considering that no settlement was in force after
31 December 2003, the respondent–company, according to him,
introduced a group incentive scheme on 14 October 2006 as a
voluntary measure to provide some benefit to the workmen. He
submitted that upon receiving representations, the said scheme
was discontinued with effect from 30 October 2006 and a revised
scheme, referred to as the Helping Hand Scheme, was introduced.
The scheme was applicable only to those workmen who submitted
an undertaking accepting its terms, and a large number of
workmen opted for the scheme and were granted its benefits. He
emphasised that all workmen who furnished undertakings were
granted benefits irrespective of union affiliation, and that the
petitioner-union opposed the scheme and dissuaded workmen
from accepting it, as a result of which certain workmen did not
submit undertakings and were consequently not granted benefits.
16.It was further submitted that the scheme in question was a
unilateral scheme requiring a workman to furnish an undertaking
signifying acceptance of its terms, upon which he would be placed
in a group and required to achieve prescribed production targets to
earn incentives. It was contended that even workmen who did not
opt for the scheme were required to work in groups and contribute
to production, and failure to meet required output could expose
them to disciplinary action under the applicable Standing Orders.
However, it was submitted that mere contribution to production
would not entitle such workmen to claim benefits in the absence of
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compliance with the requirement of furnishing an undertaking. It
was also submitted that the petitioner-union has failed to identify
the specific workmen on whose behalf the complaint was filed and
that the relevant data, if any, was within the custody of the
respondent–company. According to the respondent, the reason why
certain workmen did not opt for the scheme was their
apprehension regarding clause 4(g), which empowered the
company to withdraw benefits. It was lastly submitted that the
Industrial Court has duly considered all relevant aspects and no
interference is warranted.
17.It was further submitted that the case now sought to be
urged by the petitioner was not pleaded before the Industrial
Court. A reading of the complaint, particularly paragraphs 4 to 6,
would indicate that it was confined to Items 3 and 9 of Schedule
IV of the MRTU and PULP Act. The grievance as pleaded was that
all workmen had worked as per directions of their superiors and
were eligible for incentives, but the respondent–company had
granted such benefits only to some workmen, thereby allegedly
showing favouritism. It was contended that apart from a general
assertion that breach of law would amount to unfair labour
practice, there were no specific pleadings to the effect that
workmen were compelled to work in groups against their will, or
that identifiable workmen who had achieved production targets
were denied benefits, or that workmen refrained from submitting
undertakings due to apprehension regarding the scheme, or that
refusal to comply would expose them to disciplinary action. In this
context, it was submitted that the respondent had specifically
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raised the objection that the complaint was vague and devoid of
material particulars.
18.It was submitted that the Industrial Court has rightly upheld
the objection of vagueness. In paragraph 22 of the impugned
order, it has been recorded that the complaint does not disclose the
identity of the workmen allegedly denied benefits, the nature of
work performed by them, or the extent of incentive payable. In
paragraph 26, the Industrial Court has considered the evidence of
the petitioner’s General Secretary, who admitted in cross-
examination that no list of affected workmen was annexed to the
complaint and that he was unable to identify the workmen entitled
to the claimed benefits. It was further submitted that none of the
witnesses examined by the petitioner were competent to depose on
behalf of other workmen, and that only one witness had not
received benefits and had admitted that he had not submitted the
undertaking or made any demand. The Industrial Court therefore
rightly concluded that vague pleadings and limited evidence
cannot establish entitlement to incentive. It was submitted that
although strict rules of the Code of Civil Procedure may not apply,
material facts must be pleaded, and no evidence can be led in
respect of facts not pleaded. The findings of the Industrial Court
were therefore based on proper appreciation of pleadings and
evidence and warrant no interference.
19.It was submitted that although the complaint was filed under
Item 3 of Schedule IV, the Industrial Court has examined the issue
under Item 5 relating to alleged favouritism. The only allegation in
the complaint was that incentives were granted to some workmen
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and denied to others. It was contended that the allegation that the
scheme was not made available to all workmen is incorrect, as the
petitioner’s own evidence shows that the scheme was displayed on
the notice board and was applicable to all employees. It was
therefore submitted that all workmen were aware of the scheme
and its requirement of furnishing an undertaking. It was further
submitted that execution of an undertaking was a condition
precedent for claiming benefits and, in the absence thereof, no
entitlement could arise. It was pointed out that it is an admitted
position that none of the workmen on whose behalf the complaint
was filed had submitted the undertaking. The Industrial Court has
therefore rightly held that no case of favouritism or unfair labour
practice was made out.
20.It was further submitted that the issue of delay in filing both
the complaint and the writ petition was expressly kept open at the
stage of admission. The scheme was introduced in October 2006,
whereas the complaint was filed only in December 2008, and is
therefore barred by limitation. Further, the impugned order is
dated 16 December 2014, whereas the present writ petition was
filed on 25 June 2016, indicating substantial delay. It was
submitted that the explanation sought to be offered by the
petitioner regarding pendency of other proceedings is vague and
unsupported by pleadings. In view of the aforesaid submissions, it
was urged that the writ petition deserves to be dismissed.
REASONS AND ANALYSIS:
21.I have heard the learned counsel for the parties at some
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length and I have also gone through the record which was placed
before the Industrial Court and the impugned judgment dated 16
December 2014. The petitioner contends that the respondent
company made the workmen work in the same group, took benefit
of their work, and yet refused the incentive money to those who
did not sign the undertaking. The respondent company contends
that the scheme was voluntary, that the undertaking was a
condition for receiving benefit, that all workmen were informed of
it, and that only those who did not accept the terms were kept
outside the scheme.
22.The petitioner has tried to put forward the case in a manner
that the scheme dated 30 October 2006 was not a normal
incentive scheme but something which carried pressure inside it
though not openly stated. The argument is that the management
fixed groups of workers on its own. These groups were then made
to work and their total output was measured. Based on that group
output, incentive amounts were paid. However, according to the
petitioner those workers who did not sign the undertaking were
still made to work in the same groups and contribute equally to
the production but when it came to payment they were excluded.
The grievance is that the benefit was linked to group work, but the
exclusion was individual and this created unfairness. The
petitioner has also pointed out clause 4(g) of the scheme.
According to them this clause gave full power to the company to
later say that a worker did not maintain discipline or efficiency
and on that basis even recover the incentive already paid. The
submission is that this power was not controlled by any objective
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standard and was left to the company’s own view. Because of this,
the workers were put in a position where they had to accept the
scheme without knowing whether the benefit would remain or be
taken back. In that sense the petitioner contends the scheme was
not really for helping workers but was used as a tool to keep them
under control and also to weaken the members of the petitioner
union at a time when the recognition dispute was going on.
23.There is some substance in the concern raised by the
petitioner at a general level. Any scheme which is presented as a
benefit must be fair in its working. If a company says it is giving
extra payment for better work then the conditions must be clear
open and applied equally. It cannot keep important parts hidden
and then expect workers to accept it without question. Workers are
dependent on their wages and incentives. If a scheme creates fear
that benefit may be taken away later on uncertain grounds then
naturally workers may hesitate. Also, if workers are made to
contribute to production but are denied the corresponding benefit
without clear reason that may give rise to a sense of injustice.
However, in a court of law concern alone is not enough. The party
making such allegation must bring clear facts. The Industrial Court
had to see not only whether such a situation could exist but
whether in fact it did exist in this case. For that the complaint had
to clearly state who were the affected workers, what exactly they
did, how they were treated differently and how such treatment
amounted to unfair labour practice under law. On this requirement
the petitioner’s case does not stand on strong footing.
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24.The complaint which was filed before the Industrial Court
has been described as vague and on careful reading that finding
appears correct. The complaint contains broad statements that all
workers worked as per instructions and yet only some received
incentive. But beyond this general statement there is no detail. It
does not mention names of the workers for whom relief is sought.
It does not provide a proper list. It does not explain which worker
worked in which group during what period and what level of
production was achieved. It also does not show how much
incentive each worker should have received. In matters like this
especially where relief is claimed for many workers such details
are necessary. Otherwise, the Court is left to assume facts which it
cannot do. The respondent must also be told clearly what case it
has to answer. If the case is not clearly pleaded the respondent
cannot defend properly. The proceeding then becomes unclear. In
the present case that essential requirement is not satisfied.
25.The Industrial Court has also looked at the evidence given by
the petitioner and has found it insufficient. The General Secretary
of the petitioner union who filed the complaint was expected to
have knowledge about the affected workers. However, in cross
examination he could not name the workers for whom the
complaint was filed. He admitted that no list was attached to the
complaint. He was not able to say which worker was entitled to
what amount. This shows that even at the stage of evidence the
basic facts were not clarified. The petitioner tried to rely on one or
two individual cases to show that injustice was done. But that
cannot establish a general claim for all workers. Each worker’s case
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must be supported by some material. One example cannot stand
for all unless the situation is identical. Further the workman who
said he did not get benefit admitted that he had not signed the
undertaking. He also admitted that he had not made any demand
to the company for such benefit. If the scheme itself required an
undertaking as a condition and a worker did not fulfil that
condition then his claim becomes weak. The Court cannot ignore
the terms of the scheme and grant benefit as if the condition did
not exist.
26.I also find that the arguments now advanced by the
petitioner go somewhat beyond what was originally pleaded
before the Industrial Court. In the complaint the main ground was
that of discrimination and favouritism. The complaint said that
some workers were paid and some were not. However, the more
detailed argument now made that workers were forced to work in
groups against their will, that they faced threat of disciplinary
action if they refused, and that clause 4(g) created a system of
pressure is not set out with clarity in the complaint. A party cannot
change or expand its case at a later stage. The Court has to decide
the matter based on what was pleaded and proved before the
lower court. It is true that labour courts are not bound by strict
technical rules. Still the basic facts must be there. Without them
the other side is taken by surprise and the Court cannot properly
understand the dispute. For this reason the Industrial Court was
justified in holding that the complaint lacked necessary particulars
and could not sustain the serious allegations made therein.
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27.The respondent company has tried to show from the record
that the scheme was not something secret. According to them the
scheme was put on the notice board and was made known to all
workers. This part is important because if a scheme is openly
declared, then every worker gets an opportunity to know its terms
and decide whether to accept it or not. The respondent has also
pointed out that the requirement of giving an undertaking was
clearly written in the scheme itself. It was not hidden in any
manner. It was one of the basic conditions from the beginning. The
material placed on record shows that those workers who signed
the undertaking were given the incentive amounts. There is no
clear case shown where a worker signed the undertaking, fulfilled
the conditions and still was denied benefit. This becomes very
important. Because if such cases were shown, then it could
indicate discrimination. But in absence of such proof the position
remains that the scheme was applied as per its terms. If the
scheme itself requires acceptance in writing then only those who
accept it can claim benefit. A person who chooses not to accept the
terms cannot later say that he should still get the same advantage.
That would go against the very structure of the scheme.
28.The petitioner has then argued that even those workers who
did not sign the undertaking were made to work in the same
groups and contribute to production and, therefore, they should
also be given the incentive. There is a difference between working
together and being entitled under a scheme. In an industrial setup
workers are often required to work in teams or groups. That is part
of normal functioning. The management has a right to organise
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work in such manner for efficiency. But that by itself does not
create a right to claim every benefit linked to that work. The
scheme here was not shown to be a binding settlement or an
award which applies to all workers. It was a separate scheme with
its own rules. One of those rules was that a worker must sign an
undertaking. If a worker did not agree to that condition then he
remained outside the scheme. The Court cannot remove that
condition and say that everyone should be treated as if they
accepted it. That would mean rewriting the scheme, which is not
permissible. The petitioner’s argument is that the benefit should be
given without accepting the condition. Such a position cannot be
accepted in law.
29.As regards clause 4(g) much emphasis was placed by the
petitioner on the power of the company to withdraw benefits. It is
argued that this clause gave too much power to the employer and
created fear among workers. It is possible that such a clause may
cause worry. A worker may feel that even after working, the
benefit can be taken away later. However, the Court has to see the
matter in a legal context. The question is whether in this case that
clause was actually used in a manner which is unfair or
discriminatory. For that some concrete example is necessary. There
must be material to show that a particular worker was targeted or
that benefits were withdrawn arbitrarily or that the clause was
used only against certain workers. In the present case no such
specific instance has been brought on record. The argument
remains at the level of apprehension. Therefore, this contention
also does not advance the case of the petitioner.
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30.The learned Advocate for the petitioner has then made an
alternative request. It is submitted that even if this Court finds that
there are no proper pleadings or full details of the workers on
record still the matter should be sent back to the Industrial Court.
According to the petitioner an opportunity may be given to place
proper details, such as names of workers, nature of work done by
them, and the benefits claimed. This submission though appearing
fair at first glance cannot be accepted in the facts of the present
case. The complaint was filed in the year 2008. The matter was
pending before the Industrial Court for several years. During that
time the petitioner had full opportunity to place all necessary
material on record. The petitioner examined witnesses. Documents
were produced. The proceedings were not rushed. In such
situation if still the basic facts were not brought on record then it
cannot be said that the petitioner did not get opportunity. It
appears more as a case where the petitioner failed to properly
present its case, rather than being prevented from doing so. It is
also important to note that a remand is not to be ordered as a
matter of routine. If such requests are accepted easily, then every
party whose case fails can come and say that one more chance be
given to improve the case. That will make finality of proceedings
uncertain. The other side will also be prejudiced, because it has
already contested the matter based on the pleadings as they stood.
Litigation cannot be allowed to continue in this manner without
end.
31.Further the defect in the present case goes to the root. The
identity of workers, the details of their work, and the exact
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entitlement claimed are the very foundation of the complaint.
These are not minor omissions which can be casually corrected
later. Allowing such improvement at this stage would mean
permitting the petitioner to build a new case. In these
circumstances, I am not inclined to accept the request for remand.
The petitioner had sufficient opportunity before the Industrial
Court. Having failed to make out a proper case,it cannot now seek
a fresh opportunity to fill up the lacuna. The submission is
therefore rejected.
32.In the end the position becomes clear when everything is
seen together. The petitioner has made serious and strong
allegations against the respondent company. However, the
complaint filed before the Industrial Court did not contain proper
and clear facts to support those allegations. The basic details were
missing. Even during evidence the witnesses were not able to
supply those missing facts or make the case clear. The Industrial
Court considered the entire record carefully. It came to the
conclusion that the complaint was vague. It also noted that the
scheme required an undertaking and that those workmen who had
given such undertaking were granted the benefits. It further found
that there was no proper proof of discrimination or favouritism.
These findings are based on the material available on record. They
appear to be reasonable and possible conclusions. It cannot be said
that the Industrial Court has taken a view which is illegal or
completely wrong. Therefore, this Court does not find any ground
to interfere while exercising writ jurisdiction.
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33.For these reasons, the writ petition stands dismissed.
34.Rule stands discharged. There shall be no order as to costs.
(AMIT BORKAR, J.)
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