Neeta Sawant WP-6448 OF 2003

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6448 OF 2003

Shantaram G. Choudhary and Ors. ...Petitioners

V/s.

M/s. Teksons Limited and Anr. ...Respondents

________________

Mr. V.P. Vaidya, for the Petitioner. 

Mr. Kiran S. Bapat, Senior Advocate with Mr. Dhruv Dandekar, Ms.

Avantika Mehndiratta & Ms. Chaya Bhadkamkar i/b. Veritas Legal, for the

Respondent.

________________

CORAM: SANDEEP V. MARNE, J.

Reserved On: 3 July 2026.

Pronounced On: 13 July 2026.

Judgment:

1) By this Petition, Petitioners have challenged the judgment and

order dated 28 October 1993 passed by the Industrial Court to the limited

extent of non-acceptance of their case of non-tendering of resignations

and leaving the issue of reinstatement dependent on non-tendering of

resignations. The Petitioners have also challenged order dated 29

September 2000 passed by the learned Member Industrial Court

dismissing Complaint (ULP) No. 151 of 1994, which was instituted by

them seeking declaration of non-tendering of resignations and

consequent reinstatement. They have also challenged order dated 10

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February 2003 dismissing the Miscellaneous Applications �led for

implementation of Order dated 28 October 1993.

2)Respondent is an engineering concern having its establishment at

Thane. In the year 1981, employees of the Respondent joined the

Association of Engineering Workers and there was an Industrial strife.

According to Petitioners, about 315 employees were suspended leading

to Industrial action by the employees. The employer treated the action as

illegal strike whereas the Union treated the same as illegal lockout. The

then Union �led a Complaint of unfair labour practice contending that

the company had resorted to illegal lockout from 11 May 1981. In

Complaint (ULP) No. 337 of 1985, the Court appointed an

enquiry/investigating of�cer to verify and report to the Court in respect

of veracity of allegation of strike vis-a-vis lock out. According to

Petitioner, the Court directed by order dated 11 August 1986 that the

employees be permitted to resume duties. The employees apparently

resumed the work in February 1987 and continued to work till December

1987. According to Petitioners, the employees were prevented from

joining duty without giving an undertaking that they have resorted to

illegal strike from 11 May 1981.

3)In the above background, Kamgar Utkarsha Sabha �led Complaint

(ULP) No. 459 of 1987 alleging unfair labour practice before Industrial

Court. A settlement was signed by 5 representatives of the employees

with the Respondent on 12 October 1990. 42 employees got aggrieved by

the settlement and �led Intervention Application at Exh-UA-2 for their

impleadment to Complaint (ULP) No. 459 of 1987 contending that they

had not resigned and that the terms of settlement were not acceptable.

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The Application of 42 employees was allowed, and they prosecuted

Complaint (ULP) No 459 of 1987. By judgment and order dated 28

October 1993, the Industrial Court virtually allowed the Compliant and

held that the action of the Respondents in demanding declaration as a

condition precedent for allowing them to resume work from 4 December

1987 onwards amounted to imposition of illegal lock out. Though the

Industrial Court held that Respondent committed unfair labour practices

under Item 6, 9 and 10 of schedule IV of the Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices Act, 1971

(MRTU & PULP Act), it refused to accept the contention of 42 workers

that they had not resigned in term of settlement and instead left that

issue open. The Industrial Court directed that only those employees were

entitled to resume duties who had not resigned from services.

4) Respondent-employer took a stand that all 42 workers ha d

resigned and refused to permit them to resume duties. Therefore Shri.

Shantaram Chaudhary �led fresh Complaint (ULP) No. 151 of 1994 on

behalf of the 24 employees complaining that the Respondent had

committed unfair labour practice by not permitting them to resume the

duties. Complainant (ULP) No. 151 of 1994 was dismissed as not

maintainable by order dated 29 September 2000. Those employees were

thereafter advised to �le Miscellaneous Applications under Section 50 of

the MRTU & PULP Act for implementation of the judgment and order

dated 28 October 1993. However, by common order dated 10 February

2003, the Applications were dismissed holding that Industrial Court

lacked jurisdiction to determine the issue as to whether employees had

indeed resigned from service or not.

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5) After being unsuccessful in getting back their jobs, 22 employees

have �led present Petition challenging the orders passed by the

Industrial Court on 28 October 1993 in Complainant (ULP) No. 459 of

1987, Order dated 29 September 2000 in Complainant (ULP) No. 151 of

1994 and Order dated 10 February 2003 dismissing the Misc.

Applications �led under Section 50 of the MRTU & PULP Act.

6) I have heard Mr. Vaidya, the learned counsel appearing for

Petitioners who submits that the Petitioners have practically succeeded

before the Industrial Court in Complainant (ULP) No. 459 of 1987. He

submits that Issue No. 1 about illegal lockout is answered in favour of

the Petitioners. That the issue of violation of conditions of service is also

answered in favour of the Petitioners. That the Labour Court also held

that the Respondent-Employer committed unfair labour practices. That

however while answering issue No. 5 relating to entitlement for

resumption of duty, the Industrial Court erred in not accepting the

contention of the 42 employees that they have not resigned from

services. That if the 42 workers had resigned from services, they would

not have sought their impleadment or prosecuted the Complaint after

the same was virtually given up by the Union.

7) Mr Vaidya further submits despite succeeding in Complainant

(ULP) No. 459 of 1987, the Petitioners have not secured �nal relief of

reinstatement on account of deliberate misinterpretation of the order of

Industrial Court by the employer. That the subsequent Complaint of

unfair labour practice was dismissed on the ground that the same was

not maintainable. Similarly, implementation proceedings are also

dismissed holding that the issue of resignation cannot be determined in

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those proceedings. He submits that the employer did not produce

resignation letters. That employees cannot prove negative that they had

indeed resigned from services. The resignation letters ought to have

been produced on record. That Shri. Shantaram Chaudhary led evidence

on behalf of all the workers about absence of resignations. He therefore

submits that a declaration be issued that the Petitioners did not resign

from services so that they can enjoy the fruits of their success in

Complaint (ULP) No. 459 of 1987.

8) The Petition is opposed by Mr. Bapat, the learned Senior Advocate

appearing for Respondent-employer. He questions maintainability of the

Petition. That the Petition is �led after inordinate delay and order dated

28 October 1993 cannot be permitted to be challenged in the Petition

�led 10 years later in 2003. That Petitioners have accepted the order

dated 28 October 1993 and sought his implementation by �ling two

subsequent proceedings. Now they cannot turn around and challenge

that order. He submits that Petitioners did not produce an iota of

evidence to prove that they have not tendered resignations. That it is

Respondent’s speci�c case that all workers had tendered their

resignations and that the settlement was entered only after ensuring

that resignations were secured from all the employees. He submits that

the number of the aggrieved employees has substantially come down.

That earlier 42 employees had agitated their grievances which number

got reduced to 24 by the time Complaint (ULP) No. 151 of 1994 was �led.

The present Petition is �led only by 22 workers and that some of the

workers have passed away. He therefore submits that this Court need not

interfere in the impugned orders. He prays for dismissal of the Petition.

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9) Rival contentions raised on behalf of the parties now fall for my

consideration.

10) It must be observed at the very outset that the petition is grossly

delayed so far as challenge to the order dated 28 October 1993 passed by

the Industrial Court in Complaint (ULP) No. 459 of 1987 is concerned.

The petition is �led after 10 long years after passing of order dated 28

October 1993. However the objection of delay needs to be ignored since

this Court is satis�ed that there are no laches on the part of the

Petitioners. There are particularly two reasons for not dismissing the

petition on the ground of delay and laches. Firstly, the petition has been

admitted by this Court on 10 December 2003 and has remained pending

in this Court for over 23 long years. Secondly, Petitioners had virtually

succeeded in Complaint (ULP) No. 459 of 1987 and there was actually no

reason for them to challenge the Order dated 28 October 1993. However,

Respondent’s interpretation of that order made the Petitioners to �le

subsequent litigations. Petitioners were required to �le proceedings for

implementation of the order in Complaint (ULP) No. 459 of 1987, they

cannot enjoy the fruits of their success on account of actions of the

Respondent. Their Applications �led under Section 50 of the MRTU &

PULP Act came to be dismissed on 10 February 2003 where after

Petitioners �nally realized that the order dated 28 October 1993 is being

interpreted against them. In that view of the matter, therefore the

Petition cannot be dismissed on the ground of delay or laches.

11) Complaint (ULP) No. 459 of 1987 was initially �led by Kamgar

Utkarsha Sabha. The said Union apparently entered into settlement

during pendency of the Complaint, and it is the case of the Respondent-

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employer that all the concerned employees tendered their resignations

and after ensuring their resignations, the Settlement was signed on 12

October 1990. On the other hand, it is the contention of the 42

employees that they did not tender resignations and that they were

opposed to the Settlement. With this grievance, they sought intervention

in Complaint (ULP) No. 459 of 1987 for prosecution of the Complaint

which otherwise would have been given up by the Union. Their

intervention was allowed and those 42 employees ultimately prosecuted

Complaint (ULP) No. 459 of 1987.

12) The Industrial Court answered the �rst four issues in favour of the

42 employees/complainants. This is clear from the issues and answers to

them which are set out below:

1. Whether the impleaded employees

prove that the Respondents' action of

demanding alleged  declaration as a

condition precedent for allowing

them to resume work from 4th

December, 1987 onwards amounts to

imposition of illegal lockout against

them ?

Yes

2. Whether the impleaded employees

prove that by their aforesaid action,

the Respondents violated their

conditions of service?

Yes

3. Whether the impleaded employees

prove that by their aforesaid action

the Respondents exercised force

against them?

Yes

4. What unfair labour practices, if

any, the Respondents prove to have

committed ?

Yes. The Respondents are proved to

have committed unfair labour

practice under Items 6,9 and 10 of

Schedule IV of the Act.

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5. Are the impleaded employees

entitled to claim resumption of duty

and consequential relief of payment

of full back wages, as claimed in the

Complaint?

Yes, only those impleaded

employees who have not resigned

from the employment of the

Respondents shall be entitled to

resumption of duty with full back

wages.

13) Thus, the Industrial Court has held that an illegal lockout was

imposed against the Complainants and that there was violation of

conditions of their service. It is held that force was exercised on them for

tendering resignations and thereby unfair labour practices were

committed. Thus the �rst four issues are answered in favour of the

complainants. Even the Issue No. 5 is answered in their favour. However,

the Industrial Court restricted the relief of resumption only for those

who did not tender resignations. While doing so, the Industrial Court

itself did not enquire as to who had resigned and who had not. The

Industrial Court has recorded following reasons while answering Issue

No.5:

ISSUE NO.5:

13. I have hold above that the impleaded employees have proved that

the Respondents illegally shunned them from resuming work and the

Respondent's said action amounts to illegal lock-out. I have also held

above that the Respondent's action is in  breach of the service

conditions of the concerned employees I'm that, their contract of

employment was never validly terminated. I have also found that the

said Respondent action has implied exercise of force. The important

question that now arises for consideration is whether proof of unfair

labour practices committed by Respondent, the impleaded employee

would be entitled to claim the relief or resumption of duty and payment

of back wages. It may be stated that on the on the day the impleaded

employees �led pursis. Exh. UA-2 and sought their dimpleading as party

to the Complaint, the original parties to the Complaint �led pursis

Ex.CU-1 , stating therin that they had resolved the dispute involved in

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the Complaint by amicable settlement signed under Section 2(p) of the

Industrial Disputes Act, 1947. The pursis was signed by the Director of

the Respondents  and �ve committee members and representatives of

the employees. The also placed on record copy of the settlement dated

12th October, 1990. It appears that in terms of the said settlement, the

Respondents extended certain monetary bene�ts to the employees

listed in Annexure "A" to the said Settlement. It further appears that the

bene�ts under the said settlement were extended to those of the

employee who tendered their resignation and resigned from the

employment. It is, therefore, clear that pending the hearing of the

dispute in the Complaint, the concerned employees, by their own act,

brought about termination of their contract of employment. There is

also admission in the joint petition, Ex.UA-2 dated 31st October, 1990,

that the impleaded employees had resigned from the employment

though they have alleged that their resignation letters were obtained by

deceit. The witness Shantaram Choudhary (LW-1) did not even remotely

whisper in his evidence about the alleged deceit practised by the

Respondents and the Union obtaining resignation letters from the

concerned employees. There is also no material on record to suggest

that any fraud was committed upon the concerned employees by the

Respondents or the Complainant Union in arriving at the settlement in

question. The settlement in question appears to be a package deal,

which is accepted by majority of the employees. In the absence of any

evidence that the settlement in question is invalid for any reason, it is

not possible to strike down the settlement as invalid. However, as the

terms of the settlement go, it would not be binding to those of the

employees who did not submit their resignation letters. To this

extent, the contract of employment of such employees, who have

not resigned from service, would continue to subsist and such

employees would be entitled to claim resumption of duty with full

back wages.

 In the result, Issue No.5 is answered accordingly.

(emphasis added)

14) In my view, the Industrial Court has grossly erred in leaving open

the issue of tendering of resignations. If the Industrial Court intended to

grant the relief of resumption to those Complainants who had not

tendered resignations, it ought to have conducted a factual enquiry into

that dispute. The Industrial Court was fully aware of the stand taken by

the employer that all 42 Complainants had tendered their resignations.

On the other hand, it was the case of the 42 Complainants that they had

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not tendered resignations. In the light of this rival positions taken by the

parties, it was incumbent upon the Industrial Court to determine this

factual dispute and to give a clear answer as to whether the 42

complainants or any of them had indeed tendered resignations or not.

The error on the part of the Industrial Court has resulted in a situation

where despite succeeding in the Complaint, none of the 42 workers have

ultimately received any bene�t. This is clear from further litigation,

which some of them were required to adopt for the next 10 years, details

of which are discussed in paragraphs to follow.

15) As observed above, the employer had always adopted a position

that all 42 workers had tendered their resignations and had participated

in the Settlement. Therefore, the employer refused to allow any of the

said 42 workers to resume duties. Mr. Bapat has submitted that the

payments due to the said 42 workers have been ultimately deposited

with the of�ce of Labour Welfare Commissioner.

16)Refusal by the employer to permit resumption of duties, forced 24

employees to undertake further litigation by �ling Complaint (ULP) No.

151 of 1994 (Shri. Shantaram Chaudhary �led it on behalf of 24 employees).

Ordinarily, it is impermissible to �le a fresh complaint of unfair labour

practice claiming the very same relief of resumption of duties which was

already considered by the Court in previous Complaint. The Complaint

was therefore dismissed as not maintainable by Order dated 29

September 2000.

17) This forced the employees to �le Miscellaneous Applications

seeking implementation of the order dated 28 October 1993. The

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Industrial Court faced a unique conundrum where it lacked jurisdiction

to conduct factual inquiry about tendering of resignations by the

employees under Section 50 proceedings. It has therefore dismissed the

Misc. Applications vide order dated 10 February 2003.

18) Petitioners thus face a unique situation where despite virtually

succeeding in Complaint (ULP) No. 459 of 1987, they have received no

bene�t out of such success. The Industrial Court granted the relief of

resumption of services only to those employees who had not resigned in

terms of Settlement dated 12 October 1990. The operative part of the

order dated 28 October 1993 reads thus:

It is hereby declared that the Respondents are guilty of unfair labour

practices under Item 6 of Schedule II and Items 9 and 10 of Schedule IV

of the Maharashtra Recognition of Trade Unions & Prevention of Unfair

Labour Practices Act, 1971.

The Respondents are hereby directed to cease and desist from engaging

in the aforesaid unfair labour practices by allowing those of the

impleaded employees who have not resigned from service in terms of

the settlement dated 12th October, 1990 to resume work and pay them

full back wages for the period for which they were not allowed to work.

There shall be no order as to costs.

19) The employer has �atly refused to recognize the position that any

of the 42 employees had not tendered resignations. In the Af�davit-in-

Reply �led in the present petition, the Respondent-employer has taken

the following defence:

6. I say that from the documents and evidence on record, it is amply

clear that the Petitioners have submitted their respective resignations. I

further say that the only defence taken by the Petitioners is about the

alleged deceit practiced by the then representatives of the union. I say

that in spite of the knowledge of the said resignations and in spite of

the fact that they �led the application before the Learned Industrial

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Court on 31.10.1991, none of the Petitioners came forward to lead oral

evidence in respect of the aforesaid alleged deceit practiced. I say that

therefore the learned member of the Industrial Court has rightly held

that there is no material on record to suggest that any fraud even once

committed upon the Petitioners by the Respondents and/or said

complainant union.

20) As observed above, Respondent claims to have deposited the legal

dues with the Labour Welfare Commissioner which is clear from the

following averments in para-4 of the reply:

4. I say that accordingly the Petitioners along with other co-workers

submitted their respective resignations on 15.10.1990, which were duly

accepted by the Respondent Company and deposited their respective

legal dues with the Labour Welfare Commissioner. I say that none of the

workers, including the Petitioners, made any complaints and/or

grievances in respect of the aforesaid resignations. I further say that at

no point of time neither of the Petitioners withdrew their resignation. I

say that therefore at this belated stage, the Petitioners cannot make any

grievance about the said resignations by making false and baseless

allegations.

21) The petition is now being pursued by 22 workers. Many of them

have passed away and their legal heirs are prosecuting the petition. The

net result of the situation is that by opposing the Settlement, Petitioners

have neither received the bene�t of settlement nor have got their jobs

back. The Respondent-employer did not challenge the order dated 28

October 1993 passed in Complaint (ULP) No. 459 of 1987 which is

virtually passed against it. In these circumstances, in my view, the

Respondent is required to be directed to pay to the Petitioners/their legal

heirs all �nancial bene�ts arising out of Settlement.

22) As observed above, the Petitioners were left high and dry despite

virtually succeeding in Complaint (ULP) No. 459 of 1987. The Industrial

Court left open the issue of tendering of resignation but did not specify

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the authority who could determine the said issue. Respondent-employer

took undue advantage of this open-ended process left by the Industrial

Court and though the order dated 28 October 1993 went against it

completely, Respondent thought it appropriate not to challenge the

same but took a convenient stand that all 42 employees had actually

tendered their resignations. Their resignations are not put on record at

any point of time by the Respondent. Even before this Court, the

Respondent has not produced for my perusal resignations tendered by

these employees. The Industrial Court after having left open the issue of

resignations, refused to exercise jurisdiction either under Section 28 or

under Section 50 of the MRTU & PULP Act to conduct factual inquiry

into the aspect of resignations. It dismissed Complaint (ULP) No. 151 of

1994 and also dismissed Misc. Applications �led under Section 50 of the

MRTU & PULP Act. This has resulted in a situation where Petitioners are

left with no remedy in respect of the stand adopted by the Respondent

that all 42 complainants had tendered resignations.

23)One course of action open for this Court is to set aside either the

order dated 28 October 1993 or order dated 29 September 2000 or order

dated 10 February 2003 and direct the Industrial Court to conduct a

factual inquiry in either of the three proceedings as to whether

Petitioners had indeed tendered resignation or not. However, period of

36 long years has elapsed from the date of Settlement (12 October 1990).

It would be unjust for both the parties to now expect to lead evidence for

determination of that factual issue. It is only on account of these

peculiar circumstance that this Court is not disturbing the order dated 28

October 1993, 29 September 2000 or 10 February 2003. However, leaving

Petitioners without grant of any relief is also not warranted in the facts

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and circumstances of the present case. They must at least receive what

their counterparts received out of settlement dated 12 October 1990.

This bene�t the Petitioners could have otherwise received even if they

were not to litigate for the last 36 long years. The only bene�t that I

proceed to add to those entitlements is in the form of some interest at

least from the date of �ling of the petition so that Respondent is made to

suffer consequences of its action of not challenging order dated 28

October 1993.

24) I am conscious of the position that Respondent may ha ve

deposited the legal dues with the of�ce of the Labour Welfare

Commissioner. However, making the Petitioners/legal heirs run behind

the Labour Welfare Commissioner to secure their dues after �ghting the

litigation for over 36 long years (from the date of settlement) would be

clearly unjust to the Petitioners and their legal heirs. Therefore, the

extraordinary measure needs to be adopted by directing the Respondent

to pay to the Petitioners/their legal heirs all bene�ts �owing through the

settlement and approach the of�ce of the Labour Welfare Commissioner

for seeking refund of the amount deposited with the of�ce. It would also

be appropriate to award some interest to the Petitioners/their legal heirs

who have suffered despite virtually succeeding in the initial Complaint

(ULP) No. 459 of 1987. In my view, simple interest @ 6% p.a. needs to be

awarded from the date of �ling of the present petition, i.e. w.e.f. 29 April

2003. Such course of action would balance the equities between the

parties. Respondent is also at some fault who has virtually nulli�ed the

fruits of success of order dated 28 October 1993 by taking a unilateral

position that all the 42 complainants had tendered their resignations.

The Tribunal did not accept this position which is clear from the ultimate

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relief granted by it. However, it left open the issue of tendering of

resignation. The Industrial Court subsequently refused to decide the said

issue despite taking out two proceedings in the year 1994 and 2000. In

these circumstances, the Respondent needs to be made liable to pay at

least the bene�ts of Memorandum of Settlement dated 12 October 1990

alongwith simple interest @ 6% p.a. from the date of �ling of the

present petition.

25) The petition succeeds in part and I proceed to pass the following

order :

(i) Orders dated 28 October 1993 passed in Complaint (ULP)

No. 459 of 1987, order dated 29 September 2000 passed in

Complaint (ULP) No. 151 of 1994 and orders dated 10

February 2003 passed in Misc. Applications �led under

Section 50 of the MRTU & PULP Act are not disturbed.

(ii)Respondent is directed to pay to the Petitioners/the legal

heirs all �nancial bene�ts arising out of Memorandum of

Settlement dated 12 October 1990 alongwith simple interest

@ 6% p.a. w.e.f 29 April 2003 (date of �ling of the petition).

(iii) The Labour Welfare Commissioner shall refund to the

Respondent the entire amount deposited by the Respondent

towards amount payable to the 42 complainants in terms of

Memorandum of Settlement dated 12 October 1990.

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26)With the above directions, the petition is partly allowed. Rule is

made partly absolute. There shall be no order as to costs.

[SANDEEP V. MARNE, J.]

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NEETA

SHAILESH

SAWANT

Digitally signed by

NEETA SHAILESH

SAWANT

Date: 2026.07.13

19:47:10 +0530