Maton Mines Mazdoor Sangh vs Hindustan Zinc Ltd.

The above captioned 7 writ appeals challenge a singular

order dated 2.6.2016 passed by the learned Single Judge allowing

17 writ petitions filed by Hindustan Zinc Limited. Not all affecting

workmen are aggrieved by the impugned order, and this is evident

from the fact that only 7 writ appeals have been filed concerning 7

writ petitions which were allowed.

Hindustan Zinc Limited had filed writ petitions challenging

reference orders dated 26.7.2010 and 4.4.2012 to the effect

whether the action of the Management of Hindustan Zinc Limited

in terminating the services of (workmen named in the reference)

and thereafter not reinstating/reemploying is legal and justified.

The reference order dated 4.4.2012 was with reference to the

Union espousing the cause of 184 workmen. The said reference

orders read as under:

"Whether the action of the Management of the Hindustan Zinc Limited in terminating the services of Shanti Lal Jain with effect from 27.3.2002 and thereafter not re- instating/reemploying him is legal and justified? To what relief, the workman is entitled and from which date?" x x x x x ''''Whether the action of the Management of the Hindustan Zinc Limited Udaipur in Retrenching 184 workmen ( List enclosed ) w.e.f 25.8.2001 by giving them Special Voluntary Retirement Scheme-II on closure of Maton Rock Phospate Mines, Udaipur and in not giving preference to these retrenched 184 workmen (list enclosed) at the time of new appointments made by the management on re-starting the mining activities in the same mine, is legal and justified? What relief the workmen are entitled to ? "

Relevant facts correctly noted by the learned Single Judge

are that Hindustan Zinc Limited, a Government Company within

the meaning of Section 617 of the Companies Act, 1956 was dis-

invested by the Government retaining 26% share therein. The

remainder were acquired by private individuals. Post dis-

investment due to uneconomic and unviable earning operations at

Maton Mines of the Company the Management decided to stop

operations in the Maton Mines and close the same. 202 workmen

were working in the Mines. The Company floated a special scheme

for voluntary retirement of its employees. Of the 202 employees,

179 opted to take benefit under the voluntary retirement scheme

and their offers to be voluntarily retired being accepted, benefit

as per the scheme was given to them. These 179 workmen took

the money given to them. 23 workmen did not opt for voluntarily

being retired under the scheme. They were retrenched by the

Management. Compensation for retrenchment was paid. These 23

workmen raised an industrial dispute and during conciliation

proceedings 21 agreed to accept being voluntarily retired. Thus, of

the 23 retrenched workmen, 21 accepted the benefit under the

voluntary retirement scheme. In this manner, of the 202

workmen, 200 stood voluntarily retired from service. Two

employees remained named Radhey Shyam Jat and Rajesh

Ghawri. The two agreed to be given fresh appointment in another

establishment of the Company. Thus, qua those two also no

dispute remained.

All this happened in the year 2002.

After six and half years the Union and some of the workmen

who had taken voluntary retirement raised a dispute that the

principal focus being violation of Section 25H of the Industrial

Disputes Act, 1947. The pleadings are not clear but it appears that

the foundation is re-employment given to two workmen named

Radhey Shyam Jat and Rajesh Ghawri, over looking the fact that

Radhey Shyam Jat and Rajesh Ghawri were given fresh

appointment in another establishment of the Company. The Maton

Mine was not re-opened. It still lies closed.

Case of the Company is pleaded on the definition of

''workman'' as defined under Section 2(s) of the Industrial Disputes

Act, 1947. It read as sunder:-

"(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

The argument of the Company was that a workman would be

a person employed in an industry and will include such person

who has been dismissed, discharged or retrenched. Section 2 (oo)

was also pressed into aid to highlight that voluntary retirement of

the workman was excluded from the definition of ''retrenchment''.

Section 2(oo) reads as under:-

"(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health."

The workmen and the Union raised a preliminary objection to

the maintainability of the writ petition and urged that the

industrial fora could decide the same. The Management relied

upon the decisions reported as 2000(2) SCC 455 Nedungadi

Bank V/s K.P.Madhavan Kutty and 2007(9) SCC 109

Dharappa V/s Vijapur Cooperative Milk. The workman relied

upon the decision of the Supreme Court reported as AIR 1984 SC

153 D.P.Maheshwari V/s Delhi Administration & ors. as also

AIR 2008 SCW 306 Haryana Land Reclamation and

Development Corporation Ltd. V/s Nirmal Kumar.

The learned Single Judge has distinguished the decision in

D.P.Maheshwari''s case (supra) noting that in said decision, based

on evidence a preliminary finding returned by the industrial fora

was challenged. With reference to the decision reported as 2000

(1) SCC 371 National Engineering Industries Ltd. V/s State

of Rajasthan & ors., the learned Single Judge has held that

since it was a case of voluntary retirement and facts were not in

dispute, the writ petitions could be entertained. On merits, the

learned Single Judge has held it to be a case of voluntary

retirement and hence status of a workman not being available to

the employees who had opted for voluntary retirement. The

learned Single Judge has quoted paragraph 24 from the judgment

of the Supreme Court in National Engineering Industries Ltd. case.

It reads as under:-

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace then an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be the subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may

be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter, A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. The recognized union having the majority of members is expected to protect the legitimate interest of the labour and enter into a settlement in the best interest of the labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the workers'' union as laid down by section 18(3) (d) of the Act . It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of Unions that are signatories to such settlement under section 12(3) of the Act. The Act is based on the principle of collective bargaining for resolving Industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act", as pointed out in the case of P. Virudhanchalam & Ors. v. Management of Lotus Mills & Anr ., [1998] 1 SCC 650. In all these negotiations based on collective bargaining the individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out.''

The learned Single Judge has also quoted a paragraph to

similar effect in the decision reported as 2003(11) SCC 572 Vice

Chairman and Managing Director, A.P.SIDC.Ltd. V/s

R.Varaprasad & ors. It reads as under:-

"12. This being the position both learned single Judge and the Division Bench of the High Court were not right in taking a contrary view that the benefits available under the Scheme and terminal benefits should be reckoned and calculated as on the date of actual relieving the employees notwithstanding the cut off date mentioned by the Corporation and accepted by the employees. An employee even after accepting his application could not be relieved unless entire amount to which he was entitled under the Scheme was paid. Such payment depended on making funds available by the State Government. All employees who accepted VRS could be relieved at a time or batch by batch depending on availability of funds. Further funds may be made available early or late.

If the argument of the respondents that relieving date should be taken as effective date for calculating terminal benefits and financial package under VRS, the dates may be fluctuating depending on availability of funds. Hence it is not possible to accept this argument. When the employees have opted for VRS on their own without any compulsion knowing fully well about the Scheme, guidelines and circulars governing the same, it is not open to them to make any claim contrary to the terms accepted. It is matter of contract between the Corporation and the employees. It is not for the courts to re-write the terms of the contract, which were clear to the contracting parties, as indicated in the guidelines and circulars governing them under which Voluntary Retirement Schemes floated".

On the issue of delay, the learned Single Judge has noted a

paragraph from the decision in Nedungadi Bank Limited case

(supra). It reads as under:-

"Law does not prescribe any time limit for the appropriate government to exercise its powers under section 10 of the Act: It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us L.C.A NO. 3/2007 to be -no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference, was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale `could not be the subject matter of reference under section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under section 10 of the Act in the circum- stances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent."

With reference to the failure report sent by the conciliation

officer, in paragraph 24 of the impugned decision, the learned

Single Judge has held as under:- "24. In the instant case, the failure report sent by the conciliation officer is totally laconic and does not comply with the stipulation and provisions of Section 12(4) of the Act of 1947. An application was moved under Section 2A of the Act of 1947. Once a detailed reply had been filed before the conciliation officer that there was no retrenchment, dismissal or termination of the services of the workman and retirement was on account of the voluntary retirement scheme opted by him in conciliation proceedings, the conciliation officer ought to have stayed his hands. The conciliation report does not take note of the detailed reply that was filed by the petitioner-Company nor does it enlist as to what steps were taken by him to ascertain the nature of the dispute. The very reference order has gone on the presumption there was termination of the services of the workman without going into the details or noting that there was no termination/retrenchment involved and the respondents had availed benefits of voluntary Retirement Scheme. Even the reference order dated 4.4.2012 is self contradictory. 179 accepted the voluntary retirement offered on 25.8.2001 and not 184. Obviously without appreciating the VRS and the conditions therein the appropriate Government has formulated the question ''''Whether the action of the Management of the Hindustan Zinc Limited Udaipur in Retrenching 184 workmen ( List enclosed ) w.e.f 25.8.2001 by giving them Special Voluntary Retirement Scheme-II on closure of Maton Rock Phospate Mines, Udaipur and in not giving preference to these retrenched 184 workmen (list enclosed) at the time of new appointments made by the management on re-starting the mining activities in the same mine, is legal and justified? What relief the workmen are entitled to ? Voluntary Retirement and retrenchment are mutually opposed to each other. That is why, it became all the more important for the conciliation officer to have complied with Section 12 (4) of the Act of 1947 in giving full details of the statement of facts pertaining to the case. Had the failure report been detailed, the appropriate government would have noted the fact that there was no termination / retrenchment of services."

With respect to the pleadings in the application moved by the

workmen and the Union under Section 2 (a) of the ID Act,

1947, finding returned by the learned Single Judge in paragraph

27 of the impugned decision reads as under:-

"27. Admittedly, in the instant case, there is no allegation in the application moved under Section 2(a) of the Act of 1947 that voluntary retirement scheme was obtained fraudulently or under coercion. There is a mention in some writs the settlement arrived at was under duress but what has to be kept in mind is that after the voluntary retirement scheme came into effect and was accepted by the parties, the same has not been challenged to date nor was the same sought to be set aside by invoking Section 19 of the Act of 1947. Be that as it may, the appropriate government did not go through the nature of the dispute which was limited to seeking benefit of section 25 H of the Act of 1947. Had the appropriate government applied its mind and not acted mechanically it would have noted that there was no ''termination/ retrenchment'' as mentioned in the reference orders."

In appeal same contentions which were advanced before the

learned Single Judge have been reiterated.

On the issue whether the learned Single Judge ought not to

have entertained the writ petitions, contention of the appellants

was that where a settlement was on account of a fraud,

misrepresentation or concealment of a fact and the same was

challenged, the disputed question of fact had to be decided by the

industrial fora. Thus, counsel urged that the learned Single Judge

ought not to have entertained the writ petitions.

There can be no quarrel with the proposition that where a

settlement by a workman entered with the employer is challenged

by the workman as tainted with a fraud or misrepresentation, that

itself would be an industrial dispute capable of being referred to

an industrial fora. But in this case we do not find any pleading of

misrepresentation or fraud. The pleadings of the workman and the

Union are loose and laconic. Meaningfully read the case would be

that since the Management threatened closure of the Maton Mines

they were left with no option but to accept the scheme for

voluntary retirement. This plea is neither here nor there for the

reason as a matter of fact Maton Mine was closed and it still lying

closed. The backdrop of fact concerning voluntary retirement has

been noted by us hereinabove. When the Company floated the

scheme of voluntary retirement, 179 workmen accepted the

benefit under the same. This left 23 workman who were

retrenched. Raising an industrial dispute, 21 also accepted to be

voluntarily retired. Thus qua 200 workman the chapter was

closed. There being no disputed question of fact, the learned

Single Judge was perfectly justified in considering whether the

appropriate Government applied its mind to the question whether

it was a case of termination or retrenchment. The finding returned

by the learned Single Judge in paragraph 27 of the impugned

decision cannot be faulted with.

The principles of law culled out by the learned Single Judge

with reference to the decision of the Supreme Court, the quoted

paragraphs whereof have been reproduced by us hereinabove,

have been correctly applied by the learned Single Judge. Having

taken VRS and there being no plea of fraud or misrepresentation

to induce the workmen to accept the VRS, the learned Single

Judge has correctly held that it is neither a case of retrenchment

nor of illegal termination. It is a simple case of voluntary

retirement and thus, the workmen not being entitled to raise any

industrial dispute.

We additionally highlight that it is not the case of the

workmen that the terms and conditions of the scheme were unfair

or unjust. We also highlight that other than the 179 workmen

who had accepted benefit under the voluntary retirement scheme

and who had raised no industrial dispute, remaining 23 raised an

industrial dispute. As noted above 21 out of 23 entered into a

settlement and accepted thereafter the benefit under the

voluntary retirement scheme. It is these workmen who are now

litigating again. Neither they nor the Union has issued any notice

contemplated by law terminating the settlement.

The writ appeals are accordingly dismissed.

No costs.