1. In this writ petition under Art. 226, the petitioners seek setting aside of the order, dated 30 September, 1997, passed by the Industrial Court, Maharashtra at Mumbai, inter alia, declaring that the petitioners have engaged in unfair labour practice under item (1)(b) of Sch. II and items (5) and (9) of Sch. IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU and PULP Act) and further directing the petitioners to cease and desist from indulging in the said unfair labour practice. The petitioners have been further restrained from refusing to pay any of its employees of Sewree Central Office and the employees of each of the district offices/depots throughout India without any discrimination whatsoever bonus and ex gratia amount at the rate of Rs. 3,050 in respect of the years ended 31 October, 1985 and 31 October, 1986 after adjustment of Rs. 4,000 if paid as advance.

2. The petitioner is a company incorporated under the Companies Act, 1956, and is, inter alia, engaged in manufacturing of tyres and tubes. The petitioner has its factory situate at Sewree, Mumbai, and also has its Central Sales Office at Sewree. The petitioner has a network of district offices and depots in different states all over India for sale of tyres and tubes manufactured at factory at Sewree. The first respondent is a trade union registered under the Trade Unions Act, 1926, and claims to have membership of employees of the petitioner working at Sewree Central Office and district offices and depots located all over India. The second respondent is the Member, Industrial Court, Maharashtra at Mumbai, whose order is impugned in the present petition.

3. The petitioners employed 2195 employees at its Sewree plant. All these Employees are members of the Modi Stone Tyres Employees Union, hereinafter referred to as the factory union”. This is a recognised union representing all the work force. The complainants 153 in number who are the employees of the head office and district offices are members of All India Bombay Tyres International Employees Federation hereinafter referred to as “the office union”. This union is impleaded as respondent No. 1 to the writ petition. The factory union submitted a charter of demands on 23 October, 1985 claiming 20 per cent bonus plus 20 per cent ex gratia payment. The company in its reply to the Union stated that the employees are entitled only to 8.33 per cent which is a statutory minimum provided under the Payment of Bonus Act, 1965. Thus there was an agitation by the factory union. Manufacturing process was suspended by the company with effect from 8 October, 1986. There was a lockout from 24 October, 1986 which continued for one year. In between there were conciliation proceedings between the factory union and the management. Ultimately a settlement was arrived at on 25 November, 1987 and the lockout was lifted. The benefits of bonus and ex gratia were not extended to the employees of the office union. Therefore, on 19 December, 1987, these employees made a demand for extension of the benefit of the settlement which has been given under the settlement to the members of the factory union. The demand was made for extension of Cl. 5 of the settlement to the members of the office union. The company gave its reply on 20 January, 1988. The allegations made in the notice sent by the Union were denied. It was, however, admitted that the settlement, dated 25 November, 1987 has been implemented qua the members of the petitioner union. It was stated that the company cannot implement only part of the settlement office union have to accept either the whole of the settlement or none of it. It was further stated that the company had already declared bonus for the year 31 October, 1985 and 31 October, 1986 at the rate of 8.33 per cent as per the provisions of the Payment of Bonus Act, 1965 to the employees who were sought to be represented by the office union. This bonus had been accepted by the employees. Therefore, it was stated that the demand for 20 per cent bonus as well as ex gratia was wholly misconceived, unjustified, illegal and untenable. It was further stated that as the bonus and ex gratia claimed by the office union have been paid under a settlement which constitutes a package deal, the question of making the payment will arise only if the union accepts the other terms of the settlement. Respondent No. 1, therefore, filed Complaint (ULP) No. 429 of 1988 in the Industrial Court at Mumbai, under item 2(b) of Sch. II and items (5) and (9) of Schedule IV of the MRTU and PULP Act contending that the management had indulged in unfair labour practices on and from 12 December, 1987 and on every subsequent days. This complaint was filed on 10 March, 1988. The matter came up for interim relief on 21 February, 1989 and the entire relief was granted. The management, therefore, was constrained to file Writ Petition No. 839 of 1989. Initially, the impugned order was stayed. Subsequently, however, on 26 October, 1989 the stay was vacated. Against this order, the management filed LP.A No. 1260 of 1989. By order, dated 13 February, 1990 the Division Bench remanded the matter back to the Single Judge. On 5 March, 1993 the Single Judge remanded the matter back to the Industrial Court. Counsel for both the sides were agreed that the interim order passed by the Industrial Court be quashed and a direction be issued to the Industrial Court for final decision of the complaint as the matter has been pending for 4 years. Part payment of a sum of Rs. 7.25 lakhs had already been made to the workers. It was directed that the workmen shall not be required to refund the amount deposited by the management till the final disposal of the complaint by the Industrial Court. It is in these circumstances that the impugned order has been passed on 30th September, 1997.

4. This writ petition came up for admission on 16th December, 1997 when Rule was granted. Interim prayer in terms of prayer Cl. (b) was granted subject to the petitioners paying to the respondent-union the amount of ex gratia and bonus. Consequently 2600 workers had been paid and only 153 remained to be paid.

5. Sri Talsania, learned counsel appearing for the petitioners, submitted that the impugned order deserves to be set aside as it has been passed without application of mind. The Industrial Court has merely recorded the submissions made by the counsel and thereafter agreed with the submissions made by the counsel for the union. The Industrial Court has ignored the argument that number of employees who have represented by the office union are working outside the State of Maharashtra and, therefore, the order cannot be implemented in those cases. It is further submitted that the Industrial Court has given the findings without any evidence to support the findings. Elaborating this particular point, the learned counsel has submitted that amount paid to the members of the factory union is in pursuance of a settlement arrived at with the union. This was a package deal. It was open to the office union to accept the settlement signed with the factory union as a whole. This offer was specifically made to the office union by letter, dated 20 January, 1988. This was, however, not accepted by the office union. Learned counsel further submitted that since the members of the factory union have been paid in accordance with the settlement, the Industrial Court has wrongly come to the conclusion that the management has acted favourably towards the factory union. The Industrial Court has also wrongly come to the conclusion that there has been a practice to extend the bonus paid to factory workers to the office employees automatically. In view of the above, it is submitted that no unfair labour practice has been committed by the management and the impugned order deserves to be quashed. Referring to item 2(b) of Sch. II of the MRTU and PULP Act, counsel submitted that this unfair labour practice is inapplicable to the facts and circumstances of the case. Even a bare perusal of item (2) would show that it relates to domination or interference with the union activities. The employer must take active interest in organising a union and in doing so the employer must not show partiality to one group or the other. Such is not the case here. There is force in the aforesaid submission. Thus this unfair labour practice cannot be said to be established. Items (5) and (9) of Sch. IV read as under.

“(5) To show favouritism or partiality to one set of workers, regardless of merits.

(9) Failure to implement award, settlement or agreement.”

These two unfair labour practices have been found to Tiave been proved by the Industrial Court. It is submitted by Sri Talsania that the findings returned by the Industrial Court are wholly perverse, in that the members of the factory union had agreed to give up wages for the period of lockout. The office union was given the same opportunity but they were not prepared to give up the wages for the lockout period. Pointing out to Para. 22 of the judgment, Sri Talsania submitted that the Industrial Court has given no reasons in support of the findings returned that there was a practice to extend the bonus automatically to the office union. According to Sri Talsania, it is a matter of fact that during the lockout period the members of the office union were also locked out. However, this lockout has been challenged by the office union and the reference is still pending. The learned counsel further submitted that the Industrial Tribunal has wrongly appreciated the evidence of the witnesses of the management in particular that of Sri Sood. It is stated that Sri Sood never stated that the benefits are extended automatically. Learned counsel also referred to number of letters which are placed on the record of the petition to show that whenever the benefit has been extended it has always been extended by consent. Merely because the quantum of bonus has always been the same between the factory workers and the head office employees it would not amount to a custom and usage of paying the same amount.

6. Sri Gonsalves, learned counsel appearing for respondents, on the other hand submitted that the impugned order deserves to be Up held as it has been passed after giving cogent reasons and is based on evidence. He submitted that the factory started in 1943. Since then there is not a single instance where the bonus has been paid differently to workers of the factory as compared to the employees in the office. Therefore, the custom and use is established by the mere fact that for the past 57 years there has been no difference in payment of bonus and ex gratia. He submitted that the factory union had entered into six or 7 different settlements. In each settlement some of the demands are surrendered. This surrender of some of the items cannot be treated as an isolated incident. Thus merely because the lockout wages had been surrendered by the workers in the factory would not disentitle the office employees from receiving the benefit of the settlement. The head office employees are in no manner concerned with the events which led to the lockout. The lockout notice in fact clearly states that it was done because of the agitation of the factory workers. The lockout has been challenged by the office employees in Reference (IT) No. 2 of 1993. Learned counsel thereafter referred to Settlement, dated 5 April, 1983. Clause 13 reads as under:

“All existing facilities under any previous awards, settlements, custom or uses except as settled by this settlement shall continue.”

He submitted that on the basis of this clause alone, the office employees were entitled to receive the benefit of the settlement on the basis of custom and usage. Learned counsel has further submitted that the petition deserves to be dismissed at the threshold as the petitioners are guilty of suppresio vari and suggestio falsi. It is submitted that the cross-examination which has been reproduced in support of the petition is not a correct reproduction of the cross-examination where certain admissions have been made. He submitted that a perusal of the cross examination which has been attached with the affidavit-in-reply would show that the witness has categorically admitted that the management has not denied payment of bonus or ex gratia to any workman at any time on the ground that they are not covered by the Bonus Act. There is a further admission to the effect that the management have not denied bonus or ex gratia to any workman on the ground that they are not covered by the settlement entered into by the factory union prior to 1984–85. There is further admission to the effect that workmen all over India have been paid the same quantum of payment depending upon their grade and no discrimination was made prior to 1984–85. Learned counsel submits that this plea is further supported from the letter written by the inter office memo issued on 7 July, 1981 which related to bonus for the year 1979–80. In this memo it is stated that over the years company has paid the same bonus and additional payment to district office workmen as paid to the factory and Central office workmen. Therefore, it was directed that this practice will be followed in the year 1979–80 also. Thus it is submitted that the practice is admitted Learned counsel submitted that all these factors put together clearly shows that the order passed by the Industrial Court deserves to be upheld.

7. I have considered the arguments put forward by the learned counsel. A perusal of the order of the Industrial Court shows that all the arguments put forward by the learned counsel for the union have been accepted. The arguments have been elaborately set out and thereafter the Tribunal has come to the conclusion that company cannot be permitted to take this plea that there was no practice of making payment to the head office employees which would be identical to the payment to the members of the factory union. With regard to the jurisdiction, the Industrial Court has held that the registered office of both the complainant and the respondents are situated within the jurisdiction of the Industrial Court. All the settlements have also been signed at Bombay which are applicable to all the employees including the employees working outside the State of Maharashtra. The Industrial Court has taken into consideration that the company had earlier entered into a settlement, dated 5 April, 1983, with the office union. The same has been implemented throughout India. Therefore, in my view, no fault can be found with the findings of the Industrial Court that the Industrial Court had the jurisdiction to decide the complaint. The Industrial Court has also come to the conclusion that in view of Cl. 13 of the Settlement, dated 5 April, 1983, the management could not succeed on the ground that the benefit of the impugned order cannot be extended to the employees outside the State of Maharashtra. The Industrial Court has also given further reasons stating that if the Cburt comes to the conclusion that the company has committed any unfair labour practice by not paying same quantum of bonus as compared to the factory workers, then it would amount to violation of Cl. 13 of the settlement, dated 5 April, 1983. If this is so, by virtue of Cl. 13 of the settlement, all employees outside the State will be entitled to the same benefits. The Industrial Court also noticed that if the argument of the management is accepted it will, lead to multiplicity of proceedings and the employees outside the State will have to file complaints in their respective States. In my view, the objections have been rightly overruled and the Industrial Court has correctly come to the conclusion that the Industrial Court had jurisdiction. With regard to the finding that there is a continuing practice to pay the same bonus to the head office employees, again the Industrial Court has given elaborate reasons, It cannot be said that the Industrial Court has merely put its seal of approval on the arguments which were submitted by the counsel for the office union. The Industrial Court has noticed the arguments of the management to the effect that the settlement is by way of a package deal and, therefore, the same cannot be extended to head office employees. However, relying again on the settlement, dated 5 April, 1983, the Industrial Court has come to the conclusion that the head office employees are entitled to the payment of bonus which is identical to the workers. The Industrial Court has taken into consideration number of authorities which were cited. The argument of Sri Talsania with regard to the foregoing wages of the lockout period have also been considered. It has been rightly held that the claim with regard to wages for the lockout period cannot be clubbed together with the claim for bonus and ex gratia payment. If the members of the factory union who had allegedly precipitated the lockout have foregone the benefits of the wages for the lockout period, the same cannot be enforced on the head office employees who did not participate in the lockout. They were in fact locked out in view of the declaration of the lockout by the management. Independently of the reasoning given by the Industrial Court, final force in the submissions of Sri Gonsalves to the effect that the same bonus has been paid to the employees whether they are working in the factory or in the head office since the year 1943. Even the witness of the management, as noticed above, had admitted that there was no difference in payment of bonus between the head office employees and the factory workers. Thus the custom and use is clearly established. It has come on record that the factory union had entered into 6 or 7 settlements. In each settlement, some of the demands had been surrendered. But merely because some of the demands had been surrendered does not mean that the settlement with regard to bonus and the ex gratia is effected by the surrender. As noticed earlier, the head office employees have challenged the lockout by way of Reference (IT) No. 2 of 1993 which is still pending. Therefore, it cannot be said that the lockout was accepted by the head office employees. On the other hand, it was the allegation of the management in the notice of closure that the factory workers were responsible for creating a situation where the management had to, declare a lockout. I am satisfied that there is no perversity in the order passed by the Industrial Court. It is well recognised that this Court whilst exercising the jurisdiction under Art. 226 of the Constitution of India does not sit as a Court of Appeal bver the findings of the Industrial Court. This Court would not reappreciate the evidence and come to different findings of fact. Exercise of jurisdiction under Art. 226 of the Constitution would only be justified if the findings of the Tribunal are based on no evidence or the Industrial Court has taken into consideration matters which are wholly extraneous to the complaint which was under consideration. I find that the impugned order is based on cogent and valid reasons and, therefore, this Court would not interfere with the order in its exercise of extraordinary jurisdiction under Art. 226 of the Constitution of India. Apart from the merits of the case it can be seen that out of a total work-force of 2753 only 153 workers have not been paid the amount under the settlement, dated 25 November, 1987. In my view, it would be wholly unjust and inequitable to interfere with the order passed by the Industrial Court which only brings on par the head office employees with the factory workers. As noticed earlier, this position has been in existence since 1943, when the company was established.

8. In view of the above, I find no merit in the writ petition. The same is hereby dismissed with no order as to costs. Rule discharged.