Dyes and Chemical Workers Union v. J.D. Orgochem Ltd. & Ors.

unfair labour practices against the First Respondent under Items 9 and 10 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Second Respondent to these proceedings – Asset Reconstruction Company (India) Ltd. has exercised powers under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in respect of a security 2 interest created in favour of secured creditors under the provisions of the Act. The Petitioner moved an application for the impleadment of the Second Respondent as a party to the complaint of unfair labour practices. The application was dismissed by the Industrial Court by an order dated 26th October 2007. The order of the Industrial Court refusing impleadment of Respondent No.2 is questioned in these proceedings under Article 226 of the Constitution of India.

In order to consider whether any case has been made out for the impleadment of the Second Respondent as a party to the complaint of unfair labour practices, it would be necessary to advert to some of the salient features of the complaint. The grievance of the Petitioner is that the First Respondent who was the employer had since 1998 attempted to declare a suspension of work. Amongst the activities complained of was a discontinuation of transport facilities provided to the employees. It has been averred in the complaint that the First Respondent was delaying the payment of earned wages beyond the stipulated date of the seventh day of each month on the ground that there was a financial crises. The next aspect of the 3 grievance is that the First Respondent was shifting manufacturing activities to the Unit at Patalganga from the plant at Turbhe and that the workers at Turbhe were being threatened that the benefits of the settlements which were entered into with them would be discontinued.

As a part of this design, it has been averred, the First Respondent has commenced the shifting of machinery from the Unit at Turbhe to the Unit at Patalganga. The shifting of the machinery to Patalganga, it is alleged, is illegal and an effort has been made to force the employees to resign from service. In the circumstances, it has been alleged that the employer had committed an unfair labour practice under Items 9 and 10 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

The substantive relief that is sought in the complaint is, a declaration of a commission of an unfair labour practice by the employer under Items 9 and 10 of Schedule IV. All the other reliefs, save and except for the aforesaid declaration, are of an interlocutory nature. No substantive relief, save and except for the declaration, has been sought in the complaint as it stands. 4 It is, in the aforesaid complaint, that an application for impleadment of the Second Respondent was moved on 4th April 2007. The Second Respondent, as already noted, has taken recourse to its statutory remedy under Section 13(2) of the Securitization Act. The Petitioner to these proceedings had also instituted a Writ Petition under Article 226 of the Constitution of India (Writ Petition 2626 of 2007) inter alia seeking an injunction against the First Respondent herein, and the purchaser of the machinery of the Turbhe factory, from dismantling the plant, machinery and structure and for other ancillary reliefs. A Division Bench of this Court, by an order dated 1st August 2008, dismissed the petition holding that the dues of the workers are yet to be crystalised and that since the Company was not in liquidation, the claim of the workers would not rank in priority to the liability due to the secured creditors. This, it was urged, was in respect of the sale of the movables. The Industrial Court was justified in dismissing the application for impleadment of the Second Respondent to the 5 Complaint of unfair labour practices that was instituted against the employer, namely, the First Respondent. The averments contained in the complaint, to which a reference has already been made, would reveal that the substance of the complaint is the allegation of the Union that the employer was in the process of shifting its plant and machinery from the Unit at Turbhe to the Unit at Patalganga, thereby compelling the workers to resign or leave service. In such a complaint, in any event, the Second Respondent is neither a necessary nor a proper party. There is no relationship of employer and employee between the the Second Respondent and the members of the Petitioner.

It was urged on behalf of the Petitioner that the Second Respondent has, in realization of its security interest, sold the plant and machinery and that the workers must have the remedy of asserting their rights in respect of earned wages. It is undoubtedly open to the Petitioners to adopt such remedies as are open to them in law to assert such a claim. The application for impleadment of the Second Respondent in a complaint of unfair labour practices which is 6 instituted against the First Respondent was, however, totally misconceived. The nature of the complaint, the averments therein, and the relief sought, all pertain to the conduct of the First Respondent in allegedly not paying earned wages of the workers on the due date and in attempting to shift the plant and machinery from the plant at Turbhe to the plant at Patalganga. In such a complaint, the Second Respondent was neither a necessary nor a proper party. In the circumstances, there is no merit in the petition which shall accordingly stand dismissed. While dismissing the petition, however, it is clarified that the observations contained in this order are confined to the limited question which arises at this stage, namely, to the application for the impleadment of the Second Respondent and shall not amount to the expression of an opinion on the merits of the rival contentions of the parties which shall be adjudicated upon at the hearing of the complaint. .......