Case Note & Summary
Petitioner No. 1, the Municipal Corporation of Greater Mumbai, a statutory authority under the Mumbai Municipal Corporation Act, 1888, employs over 145,000 workers. The respondent, Municipal Mazdoor Union, is a recognized union representing a majority of the employees. For decades, the parties have entered into settlements regarding wages and service conditions. In August 2011, pay revision discussions were held. On 24 August 2011, a draft agreement was prepared and given to the Union, but the Union rejected it on 2 September 2011 and threatened an indefinite strike. On 16 September 2011, the Corporation issued a circular warning against participation in agitations. On 17 September 2011, the Corporation obtained a stay order from the Industrial Court in Complaint (ULP) No. 281 of 2011, restraining the Union from striking. Despite this, on 19 and 20 September 2011, employees went on strike. Subsequently, on 15 October 2011, the Corporation issued a circular granting an ex-gratia Diwali payment of Rs.11,000 for the financial year 2010-11 to all full-time employees, but explicitly excluding those who had participated in the strike. The Union filed Complaint (ULP) No. 326 of 2011 on 18 October 2011, challenging the circular as an unfair labour practice under Section 28 read with items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act). The Union argued that the ex-gratia had been a long-standing annual practice for over 25 years and denying it to striking workers constituted discrimination. The Corporation contended that the strike was illegal, having been in defiance of a court order, and that ex-gratia was an administrative payment, not a vested right, and could be withheld from those participating in an unauthorized strike. The Industrial Court, after considering evidence, on 17 April 2012 partly allowed the complaint, declaring that the Corporation had committed an unfair labour practice under items 5 and 9 of Schedule IV, and directed payment of Rs.11,000 with 12% interest to the excluded employees. The Corporation challenged this order by way of a writ petition. The High Court's judgment was reserved on 3 August 2012 and pronounced on 8 August 2012. However, the extracted text does not include the High Court's reasoning and final decision; thus, the outcome of the writ petition is not available from the provided material.
Issue of Consideration
Whether denial of ex-gratia Diwali payment to employees who participated in strike on 19 and 20 September 2011 constitutes unfair labour practice under items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Case Details
2012 LawText (BOM) (08) 125
WRIT PETITION NO. 5088 OF 2012
Mr. A.V. Bukhari, a/w Mr. S.S. Kakale, Mr. R.N. Shah, Special Counsel, Mr. Burhan V. Bukhari, M.M. Malvankar, Ms. M.R. Bhoir, Ms. U.H. Deshpande for Petitioners; Mr. S.K. Talsania, Senior Counsel i/by Ms. Neeta P. Karnik, Ms. Shraddha Dhamale, Ms. Prinyanka Dable, Ms. Hemali Sakhare for Respondents
Municipal Corporation of Greater Mumbai and The Municipal Commissioner, Municipal Corporation of Greater Mumbai
Municipal Mazdoor Union, Mumbai
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging the order of the Industrial Court which held the Corporation guilty of unfair labour practice for denying ex-gratia payment to employees who participated in a strike.
Remedy Sought
Quashing of the Industrial Court order dated 17 April 2012 in Complaint (ULP) No. 326 of 2011 and setting aside the directions to pay ex-gratia with interest.
Filing Reason
The Industrial Court had declared that denying ex-gratia payment to one class of employees because they participated in a strike constituted an unfair labour practice under items 5 and 9 of Schedule IV of the MRTU & PULP Act, and directed payment of Rs.11,000/- with 12% interest.
Previous Decisions
The Industrial Court had earlier passed an interim order on 5 January 2012, which was set aside by the High Court. A Letters Patent Appeal was filed and the Division Bench modified the order and directed that the complaint be disposed of within three months. The Supreme Court confirmed this direction. Subsequently, the Industrial Court passed the final impugned order on 17 April 2012.
Issues
Whether denial of ex-gratia Diwali payment to employees who participated in a strike on 19 and 20 September 2011 amounts to an unfair labour practice under items 5 and 9 of Schedule IV of the MRTU & PULP Act.
Submissions/Arguments
The Petitioners contended that ex-gratia payment is not a statutory right or a term of any settlement, but an administrative decision conditional on not participating in illegal strike; the employees who defied a stay order and went on strike are not entitled to the ex-gratia; no unfair labour practice was committed.
The Respondent Union argued that ex-gratia Diwali payment had been an annual practice for over 25 years and denying it selectively to striking workers is discriminatory and violates items 5 and 9 of Schedule IV; the circular illegally restricts a long-standing benefit and amounts to an unfair labour practice.
Judgment Excerpts
It is hereby declared that by denying exgratia payment to one class of employees on the ground that they have participated in the strike on 19/9/11 & 20/9/11, the respondents have committed unfair labour practice under item5 & 9 of MRTU & PULP Act.
However in following cases exgratia payment is not permissible: 1 Employees/ Workers who had participated in the strike on 19 th and 20 th September, 2011
Procedural History
On 17 September 2011, the Petitioners filed Complaint (ULP) No. 281 of 2011 and obtained a stay order restraining the Respondent Union from proceeding with a strike. On 19 and 20 September 2011, employees went on strike despite the stay order. On 15 October 2011, the Petitioners issued a circular granting an ex-gratia payment of Rs.11,000 to all full-time employees for the financial year 2010-11, but excluded those who participated in the strike. The Respondent Union filed Complaint (ULP) No. 326 of 2011 on 18 October 2011 challenging the circular. On 5 January 2012, the Industrial Court passed an interim order in favour of the Union. The Petitioners challenged this before the High Court, which set aside the interim order. The Union filed a Letters Patent Appeal and the Division Bench modified the order, directing the Industrial Court to dispose of the complaint within three months. The Supreme Court upheld that direction. On 19 January 2012, the Petitioners filed their written statement. Evidence was led. On 17 April 2012, the Industrial Court passed the final order, partly allowing the complaint, declaring unfair labour practice, and directing payment of Rs.11,000 with 12% interest to the excluded employees. The Petitioners then filed the present Writ Petition No. 5088 of 2012 challenging that order.
Acts & Sections
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971: Section 28, Schedule IV Item 5, Schedule IV Item 9
- Industrial Disputes Act, 1947:
- Mumbai Municipal Corporation Act, 1888:
