TOMCO Employees' Union, Jasidih, Deoghar v. M/s. Hindustan Unilever Limited having its registered office at

O R D E R 24th August 2022 Per, Shree Chandrashekhar, J. An Industrial dispute was raised and the Government of Bihar vide its notification dated 24th May 1996 made a reference under section 10(1) of the Industrial Disputes Act, 1947 before the 2 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 Labour Court, Deoghar for adjudication of the following issue: “Whether the termination of service of 31 workmen named in the Annexure-A of M/s Hindustan Lever Limited, Jasidih under the Voluntary Retirement Scheme by the Management is proper? If not, what relief the workmen is entitled to?”

2. The Labour Court, Deoghar gave its award on 30th July 2002 in Reference Case no. 1 of 1996 in favor of the workmen holding that termination of the services of 29 workmen of M/s Hindustan Lever Limited, Jasidih under the Voluntary Retirement Scheme (in short, VRS) by the Management was not proper. The ex-employees, except Anil Kumar and K.N. Mandal who did not come under the purview of workmen, were held entitled to get salary and all benefits payable to them since the date of their respective retirement till the factory in question was closed. They were held further entitled to compensation under section 25-F of the Industrial Disputes Act.

3. W.P.(L) No. 6663 of 2002 filed by the Management of Hindustan Lever Limited (now known as Hindustan Unilever Limited) against the award dated 30th July 2002 passed in Reference Case No. 1 of 1996 has been allowed.

4. However, W.P.(L) No. 480 of 2003 which was filed by Kashi Nath Mandal challenging the findings recorded by the Labour Court, Deoghar in the award dated 30th July 2002 that he is not a workman was dismissed.

5. TOMCO Employees' Union has preferred L.P.A No. 349 of 2009 challenging the judgment dated 26th June 2009 passed in W.P.(L) No. 6663 of 2002.

6. L.P.A No. 365 of 2009 has been filed by Kashi Nath Mandal against the aforesaid common judgment passed in W.P.(L) No. 6663 of 2002 with W.P.(L) No. 480 of 2003.

7. Brief facts of the case are that the Jasidih factory which earlier belonged to Tata Oil Mills Company Ltd. (in short, 'TOMCO') started production in the year 1990-91. During 1991-92, the business of TOMCO was on the decline and it suffered a loss of over Rs.16 Crores and was, therefore, amalgamated with Hindustan Lever Limited. The issue of amalgamation was 3 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 challenged before the High Court of Bombay, which by an order dated 18th May 1994 dismissed all the five appeals. The Hindustan Lever Employees' Union and others challenged the scheme of amalgamation before the Hon'ble Supreme Court which was also dismissed [refer, “Hindustan Lever Employees' Union v. Hindustan Lever Ltd.”, 1995 Supp (1) SCC 499]. Thereafter an application was filed on 29th December 1994 before the Registrar of the company under section 391(2) read with section 394(1) of the Companies Act to make the amalgamation effective from that date. Likewise, on 21th March 1995, an application was filed before the Income Tax authority where extension of the VRS was sought which was approved by the Income Tax authority on 26th July 1994 for the period from April 1995 to March 1996. Pursuant to the VRS, 31 employees including 29 workmen opted for the VRS under the said scheme and submitted their resignation. They received full and final settlement of their dues and claims including the amount payable under the VRS, gratuity and provident fund. A bipartite settlement under section 2(P) read with section 18(1) of the Industrial Disputes Act was entered into and as per the requirement under Rule 61(4) of the Industrial Disputes (Bihar) Rules, 1961 the copies were sent to the different authorities. Subsequently, a dispute was raised which, as noticed above, the Government of Bihar vide its order dated 24th May 1996 referred before the Labour Court, Deoghar for adjudication.

8. Mr. Indrajit Sinha, the learned counsel for Hindustan Unilever Limited has opposed these appeals on the grounds that the award was made beyond the reference by framing issues which were not necessary for adjudicating the point under reference and, that, the findings recorded by the Labour Court about victimisation of workmen and undue influence by the Management are beyond the pleadings.

9. Relying on the judgment in “Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath” AIR 1951 SC 280, the learned counsel for Hindustan Unilever Limited contends that the writ Court rightly 4 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 interfered with the findings recorded by the Labour Court that the Management employed undue influence to coerce the workmen to accept the VRS.

10. Mr. Indrajit Sinha, the learned counsel for Hindustan Unilever Limited referred to the judgment in “General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. v. Giridhari Sahu & Ors.” (2019) 10 SCC 695 to submit that the law requires specific pleadings in respect of an allegation of victimisation and that the plea of victimisation must be established by the person pleading the same by producing cogent and consistent evidence.

11. The plea put forth by Mr. Indrajit Sinha, the learned counsel for Hindustan Unilever Limited is that there must be full particulars pleaded by the party which alleges undue influence and general allegations are not sufficient as has been done in the present case that undue influence was used to force a person to agree to an agreement.

12. In “Ladli Prashad Jaiswal vs The Karnal Distillery Co. Ltd., Karnal and others” AIR 1963 SC 1279 the Hon'ble Supreme Court has observed as under: “20. Order 6 Rule 4 Civil P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.” 5 L.P.A No.349 of 2009 L.P.A No. 365 of 2009

13. In “Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors.” (1976) 1 SCC 518 the Hon'ble Supreme Court has held as under: “10. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues. 11. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.”

14. In the first place, we would keep in mind the decision in “Hindustan Antibiotics Ltd. v. Workmen” (1967) 1 SCR 652 wherein the Hon'ble Supreme Court has held that the object behind Industrial Disputes Act is to maintain industrial peace and harmony and if affirming the award would be in furtherance of achieving the said goal the writ Court should not interfere with the award. This Court is of the opinion that an award made by the Tribunal shall not be taken lightly and interfered with on just making out of an arguable case. Secondly, A writ of certiorari shall not lie against findings of fact recorded by an inferior Tribunal in exercise of the powers exercised by the writ Court under Article 226 of the Constitution of India. The writ Court shall not interfere with an award passed by the Tribunal unless it is shown to the Court that award is rendered patently illegal or is perverse [refer, “Syed Yakoob v. K.S. Radhakrishnan” AIR 1964 SC 477]. 6 L.P.A No.349 of 2009 L.P.A No. 365 of 2009

15. The writ Court has dealt with the aforesaid aspect of the matter in paragraph no. 13, as under: “13. The respondents have further contended that the entire action was by way of fraud, under influence and coercion. The aforesaid terms have been defined under Section 15, 16 & 17 of the Indian Contract Act. However, the ingredient/requirement as mentioned under Section 15, 16 & 17 of Indian Contract Act has neither been proved nor established by the respondent Union for the reasons that none of the workman ever protested against the voluntary retirement scheme nor did they accept the money or the benefits under any reservation or protest and thus the observation of the Labour Court in this regard that it suffers from unfair labour practice is unsustainable and erroneous. There is no dispute about the fact that the payment chart which is annexed to the petition clearly showed that the application under the VRS scheme were made by the workmen and payment was made to the workmen between 19.04.1995 to 17.01.1996 respectively and during that period of 10 months no one raised any objection or any such ground at that point of time. It was by way of choice specific and free will of the workmen concerned and they were signatory to the settlement after acceptance of the benefit under the Scheme and thus, having accepted the benefit utilized the amount, signed the settlement estoppel by conduct will certainly apply against such workmen and to raise such contention subsequently is an afterthoguht. The Hon'ble Supreme Court in JT 2006 (6) SC 363 – Gyanendra Sahai v. M/s Tata Iron & Steel Company Ltd. clearly reiterated the settled law that suspicion and doubt cannot take the place of evidence and no finding of fact can be given on mere doubt or suspicion on the basis of baseless allegation. This was the view taken by the Hon'ble Supreme Court in an identical situation where the appellant therein had written letter of voluntary retirement and after having accepted retiral benefit without any protest held that they cannot turn around and say that they were compelled to submit premature voluntary retirement. It is also a settled law that maintainability of a reference can certainly be agitated since it refers to a jurisdictional issue and the same is always subject to judicial review by the High Court under its Writ Jurisdiction and this issue is no more res-integra and has been upheld time and again by the Hon'ble Suprme Court. In 2000 (2) SCC 455 the Hon'ble Supreme Court at paragraph 8 held as under :- “it was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirement or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its power under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court.”

16. On a look at the discussions by the writ Court on Issue No.4: whether the workmen accepted the alleged voluntary retirement of their own accord and free will or under the undue influence or coercion exercised by the Management; we find that there is no discussion by the writ Court why the evidences laid by 7 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 29 workmen through 13 witnesses were either not sufficient or the same could not have been relied upon by the Labour Court to hold Issue No.4 in favor of the the workmen. In Reference Case No. 1 of 1996, the Labour Court has dealt with evidence laid by the Union of workmen through 13 witnesses to the effect that the scheme of voluntary retirement was unilateral and the workmen had no other option but to accept the terms dictated by the Management of Hindustan Unilever Limited. We further find that there are references about transfer orders, disciplinary proceedings and other actions by the Management of Hindustan Unilever Limited on the basis of which the Tribunal came to a finding that the VRS offered to the workmen would amount to termination. The Labour Court further held that the workmen did not accept the VRS out of their own accord and free will and various acts of the Management in transferring the workmen and threatening them with disciplinary action would amount to undue influence. But the writ Court simply accepted the plea of the Management that the workmen could not have challenged their separation after accepting the VRS, whereas, the issue raised by the workmen was that the Management by its various acts or victimisation coerced them to accept the VRS.

17. However, we find substance in the submissions made by Mr. Indrajit Sinha, the learned counsel for Hindustan Unilever Limited that Issue No.3; “whether the closure of the production and the factory was legal and in accordance with law”, was framed beyond the reference made by the Government of Bihar under section 10(1) of the Industrial Disputes Act. Therefore, the findings by the Labour Court on Issue No.3 were improper and beyond the reference. In fact, framing of Issue No.3 was not at all necessary to decide Issue No.4.

18. The Tribunal has held that the workmen except Anil Kumar and K. N. Mandal are entitled for salary and other benefits from the date of their retirement in terms of the VRS till closure of the factory. In the same breath the Tribunal has held that the 8 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 workmen are entitled for compensation in terms of the provisions under section 25-F of the Industrial Disputes Act. In our opinion, the Tribunal committed errors in law while making the award for payment of salary and other benefits and also granting compensation in terms of section 25-F of the Industrial Disputes Act. Therefore we are inclined to interfere with this part of the award by which compensation in terms of the provisions under section 25-F of the Industrial Disputes Act has been awarded to the workmen.

19. For the aforesaid reasons, the order dated 26th June 2009 passed in W.P.(L) No. 6663 of 2002 is set aside to the aforesaid extent and the award dated 30th July 2002 is restored in part in favor of 29 workmen who were respondents in the said writ proceedings. The interference by the writ Court with the findings on Issue No.4 by the Labour Court was improper. The above-referred 29 workmen are held entitled for salary and other benefits till closure of Deoghar unit. To the aforesaid extent, the award is held valid, legal and proper. However, we do not find any reason to disagree with the findings of the Labour Court in relation to Kashi Nath Mandal. The Labour Court rightly held that he does not fall under the category of workman. No material or even an issue in law has been put forth on his behalf to challenge the findings recorded by the Labour Court regarding his status and claim, either before the writ Court or in the present proceedings.

20. The next issue is whether these 29 workmen who did not render their services to the Company are entitled for full salary and other benefits for the period till closure of Deoghar unit.

21. It is admitted at Bar that all 29 workmen in whose favor award was made attained the age of superannuation long back. The writ Court's order is dated 26th June 2009 and operation of the award dated 30th July 2002 was stayed by an order dated 16th December 2002. We find that there was, however, no order passed under section 17-B of the Industrial Disputes Act directing the Management of Hindustan Unilever Limited to continue to pay the 9 L.P.A No.349 of 2009 L.P.A No. 365 of 2009 workmen the salary which was last drawn by them. We further find that the award made by the Tribunal does not speak in specific terms that the workmen shall be reinstated in service and the reason for that appears to be that Deoghar unit of Hindustan Unilever Limited was closed. But then the question arises whether the Tribunal could have passed an order for payment of salary and other benefits to the workmen who admittedly did not render services to Hindustan Unilever Limited. We are informed that by virtue of the award dated 30th July 2002 Hindustan Unilever Limited would be required to pay salary and other allowances to some of the workmen for more than 10 years. In our opinion, an order granting salary and other benefits to a workman should not be made without having regard to facts and circumstances of the case. Any order for payment of back wages depends on host of other factors which the Tribunal is required to consider. But that has not been done by the Tribunal while making award dated 30th July 2002.

22. The aforesaid being the factual scenario, we are of the opinion that the interest of justice shall be served if an order to pay compensation to the workmen is made. Accordingly, to that extent also, we are inclined to modify the award dated 30th July 2002 by directing Hindustan Unilever Limited to pay compensation to the tune of Rs.2 Lakh to each of 29 workmen in whose favor award was made [refer, “Jagbir Singh v. Haryana State Agriculture Mktg. Board” (2009) 15 SCC 327 and “Uttaranchal Forest Development Corpn. v. M.C. Joshi” (2007) 9 SCC 353].

23. L.P.A No. 349 of 2009 is allowed to the above extent and in the aforesaid terms. L.P.A No. 365 of 2009 is dismissed. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 24th August 2022 Amit/A.F.R (Ratnaker Bhengra, J.)