Bombay High Court
Lokmat Media Private Limited, Nagpur ... vs Ramesh S/O Baburao Mondhe on 30 November, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
wp.4962.18.jud.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4962 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Vijay s/o Krushanrao Pawar,
Aged - Major, Occ. Service,
R/o. C/o. At Fetry, Tq. & Dist. Nagpur.
with
WRIT PETITION NO.4971 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Manohar s/o Maniklal Gour,
Aged 56 years, Occ. Service,
R/o. Near Manke Guruji, Lashkari Bag,
Kamal Chowk, Nagpur.
with
WRIT PETITION NO.4972 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 2
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Dilip s/o Annaji Ghaiwat,
Aged 54 years, Occ. Service,
R/o. 3266/6/E, New Kailash Nagar,
Manewada Road, Nagpur - 440 027.
with
WRIT PETITION NO.4973 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Pundalik s/o Bhaurao Gaikwad,
Aged 61 years, Occ. Service,
R/o. 49, Sai Nagar, Umred Road,
Nagpur - 440 009.
with
WRIT PETITION NO.4974 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus -
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 3
Respondent : Ishwar s/o Premlal Salame,
Aged 52 years, Occ. Service,
R/o. C/o. Shamrao Kumar,
Near Futala Library, Amravati Road,
Nagpur - 440 033.
with
WRIT PETITION NO.4975 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Bhaiyalal s/o Brijmohan Rajput,
Aged 43 years, Occ. Service,
R/o. 29, Ajani Chowk, Nagpur - 440 015.
with
WRIT PETITION NO.4976 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Moreshwar s/o Jangaluji Ghaiwat,
Aged 51 years, Occ. Service,
R/o. 34, Jaiwant Nagar, Kala Maruti Mandir,
Manewada Ring Road, Nagpur.
with
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 4
WRIT PETITION NO.4977 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Chandrakant s/o Shamrao Dasarwar,
Aged 50 years, Occ. Service,
R/o. Madhukar Apartment, Flat No.61,
Trimurti Nagar, Nagpur.
with
WRIT PETITION NO.4978 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Sunil s/o Wasant Taley,
Aged 57 years, Occ. Service,
R/o. 113, New Subedar Lay-out,
Nagpur - 440 024.
with
WRIT PETITION NO.4979 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 5
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Ramesh s/o Parasram Pethe,
Aged 46 years, Occ. Service,
R/o. Near Bhole Baisware House, Tandapeth,
Naik Talaw, Nagpur.
with
WRIT PETITION NO.4980 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Ravindra s/o Bhagyanarayan Thakur,
Aged 62 years, Occ. Service,
R/o. A-1104, Rachana Gokul Apartment,
Ring Road, Nagpur.
with
WRIT PETITION NO.4981 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Jiwant s/o Kumar Sharan,
Aged 61 years, Occ. Service,
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 6
R/o. Maa Renuka Vihar,
Rameshwari Ring Road,
Nagpur - 440 027.
with
WRIT PETITION NO.4982 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Niranjan s/o Prabhakar Markandeywar,
Aged 50 years, Occ. Service,
R/o. 103, Bajiprabhu Nagar,
Behind Ram Nagar, Nagpur - 440 033.
with
WRIT PETITION NO.4983 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Deepak s/o Shankarrao Labde,
Aged 46 years, Occ. Service,
R/o. 13, Sona Dharma Apartment,
Gopal Nagar, 3rd Bus Stop, Nagpur - 440 022.
with
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 7
WRIT PETITION NO.4984 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Sanjay s/o Yashwantrao Yeole (Patil),
Aged 50 years, Occ. Service,
R/o. 95, Sita Nagar, Wankhede Layout,
Digdoh, Hingana Road, Nagpur - 440 016.
with
WRIT PETITION NO.4985 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Deepak s/o Govind Rangari,
Aged 49 years, Occ. Service,
R/o. C/o. Narendra Dhanvij,
76, Chandramani Nagar,
Jaibhim Hosing Society, Nagpur - 27.
with
WRIT PETITION NO.4986 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 8
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Pravin s/o Diwakar Mendhi,
Aged 50 years, Occ. Service,
R/o. L-7/13, VHB Colony, Raje Raghuji Nagar,
Nagpur - 440 009.
with
WRIT PETITION NO.4987 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Chandrashekhar s/o Kisanlal Mahule,
Aged 43 years, Occ. Service,
R/o. 2, Near Jadu Mahal, New Kailash Nagar,
Manewada Road, Nagpur.
with
WRIT PETITION NO.4988 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 9
Respondent : Ramesh s/o Baburao Mondhe,
Aged 56 years, Occ. Service,
R/o C/o N.S. Pawday, Plot No.6,
Bodkhe Layout, Sachindanand Nagar,
Nagpur - 440 027.
with
WRIT PETITION NO.4989 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Nilkanth s/o Krushnaji Dongre,
Aged 53 years, Occ. Service,
R/o. 62, Surendragad Seminary Hills,
Near TV Center, Nagpur.
with
WRIT PETITION NO.4990 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Prakash s/o Deorao Kanfade,
Aged 48 years, Occ. Service,
R/o. Plot No.2, Bandu Sone Layout,
Parsodi, Nagpur.
with
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 10
WRIT PETITION NO.4991 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Kashiram s/o Ranji Rajput,
Aged 56 years, Occ. Service,
R/o. Ward No.11, Plot No.1058, Rambag,
Nagpur - 441 501.
with
WRIT PETITION NO.4992 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Vyasmuni s/o Raghubar Prajapati,
Aged 46 years, Occ. Service,
R/o. Qt. No.18, North Telankhedi Road,
Civil Lines, Nagpur - 440 001.
with
WRIT PETITION NO.4993 OF 2018
Petitioner : Lokmat Media Private Limited,
(Formerly known as Lokmat Newspapers
Private Limited, through its Senior Manager-
Legal, Syed Arshad Ali s/o Mustaq Ali,
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 :::
wp.4962.18.jud.odt 11
Aged about 39 years, Occ. Service,
R/o. C/o. Lokmat Bhavan, Wardha Road,
Nagpur.
-- Versus --
Respondent : Naktu s/o Kahirma Fulzele,
Aged 59 years, Occ. Service,
R/o. Hiwri Nagar, Zopadpatti,
Jai Bhim Chowk, Near Nag River Bridge,
KDK College Road, Nagpur.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri M.G. Bhangde, Senior Advocate for the Petitioner.
Shri S.D. Thakur, Advocate for the Respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.B. SHUKRE, J.
RESERVED ON : 7th NOVEMBER, 2018.
PRONOUNCED ON : 30th NOVEMBER, 2018.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by consent.
02] These petitions challenge the common order dated 01/08/2018 passed by the Industrial Court, Nagpur dismissing the applications filed by the petitioner on 14/12/2017 seeking restoration or revival of the applications filed under Section 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act" for short).
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 12 03] The petitioner is a company registered under the provisions of the Companies Act, 1956 having its Registered Office at Mumbai. The respondents in all these petitions were the employees of the petitioner, whose services were terminated by the petitioner by the orders passed on 21/11/2013 in respect of each of the respondents.
04] At the time when the termination orders were passed, following disputes were pending between the petitioner and the Union of the respondents-employees before the Industrial Court, Nagpur.
I. Reference IDA 2/2001 - Issue - Reclassification of newspapers establishment.
II. Reference IDA 6/2005 - Issue - Various demands of the Registered Union - Lokmat Shramik Sanghatna. III. Reference IDA 5/2013 - Issue - Grant of permanency and regularizations to persons employed on contract basis.
05] Considering the pendency of the disputes and requirement of Section 33 of the ID Act, the petitioner filed ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 13 applications under Section 33 of the ID Act seeking approval of the Industrial Court to the dismissal orders issued to all the respondents. The respondents contested these applications by filing their respective replies. As the issue of existence of employer-employee relationship was raised by the respondents, the Industrial Court thought it fit to dispose of these applications by granting liberty to the respondents to raise the issue before the appropriate forum, in spite of the fact that voluminous evidence, oral and documentary, had been adduced by the parties. The petitioner as well as the respondents challenged the order dated 16/08/2016 of the Industrial Court before the High Court and this Court, by the common order, dated 10/01/2017, set aside the said order of the Industrial Court and remanded the matter back to it for deciding the applications filed by the petitioner afresh along with the pending references. 06] After remand of the matter to the Industrial Court, a new development took place. The petitioner felt that as the ID Act was not applicable to it and it were the Maharashtra Industrial Relations Act, 1946 ('the MIR Act' for short) which was, the applications filed under Section 33 of the ID Act would not be ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 14 maintainable and, therefore, it filed identical applications dated 07/04/2017, in all the pending cases seeking permission of the Court for withdrawal of the applications filed under Section 33 of the ID Act.
07] These applications were opposed by the respondents. They were heard on merits and the Industrial Court, by the order passed on 17/04/2017, allowed these applications holding that the Court could not compel any litigant to continue with the proceedings initiated by him and that such litigant can always choose to withdraw the proceedings at his own risk and consequences.
08] About a week thereafter, the respondents filed complaints under Section 33-A of the ID Act against the petitioner in the pending cases. It was alleged that as a consequence of withdrawal of the applications filed under Section 33 of the ID Act, the termination orders had been rendered bad-in-law, they having been issued without permission or approval of the Industrial Court. These applicants i.e. respondents claimed relief of reinstatement in service with all ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 15 consequential benefits regarding continuity of service, payment of back wages and so on and so forth. The respondents also moved applications for grant of interim relief. These applications were opposed by the petitioner. The Industrial Court, by the common order passed on 07/11/2017, granted partial interim relief to all the respondents. The petitioner as well as the respondents challenged the order before this Court and this Court by the common judgment, dated 04/05/2018, allowed the petitions filed by the petitioner and dismissed the applications filed by the respondents while setting aside the common order dated 07/11/2017.
09] As this was all going on, the petitioner filed applications before the Industrial Court, Nagpur on 14/12/2017 seeking restoration or revival of the applications filed under Section 33 of the ID Act. These applications were opposed by the respondents. On merits, the Industrial Court, Nagpur by the common order passed on 01/08/2018 dismissed all the restoration applications. Being aggrieved by the same, the petitioner is before this Court in all these petitions. ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 16 10] Shri M.G. Bhangde, learned Senior Advocate for the petitioner submits that the impugned order is based upon flawed reasoning. He submits that the learned Judge of the Industrial Court has failed to consider distinction between estoppel on facts, which prohibits a party from changing it's stand and estoppel on law, which, for it's involvement of question of law, is not dependent for its resolution upon what the party says. He further submits that the Industrial Court has wrongly found that there were no bona fides on the part of the petitioner in moving the applications seeking restoration of the applications filed under Section 33 of the ID Act.
11] Learned Senior Advocate further submits that though the Industrial Court has held that the petitioner is not governed by the MIR Act and is amenable to the provisions of the ID Act and though the finding has been challenged by the petitioner in a petition being Writ Petition No.2534/2008, the petitioner has realized now that it is a mistake to contend that the MIR Act is applicable to it and that the ID Act is not. He further submits that the petitioner has, therefore, decided to withdraw Writ Petition No.2534/2008. He also submits that the point of ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 17 applicability of the MIR Act has also been raised by the petitioner in Writ Petition No.438/2011 pending before this Court and the petitioner would now submit that this contention would not be pressed by it in the said petition. He further submits that all these developments were brought to the notice of the Industrial Court, but to no avail.
12] The learned Senior Counsel further submits that the effect of the impugned order is that it takes away the substantive right of the petitioner to move an application under Section 33 of the ID Act and, therefore, it is inappropriate for the Industrial Court to dismiss such an effort of the petitioner. He lastly submits that if there is any inconvenience caused to the respondents, the petitioner is willing to bear the reasonable costs to be paid to the respondents.
13] Shri S.D. Thakur, learned Counsel for the respondents submits that the restoration applications have been filed only with a view to harass the respondents and delay their legitimate claims. He submits that once the applications filed under Section 33 of the ID Act were withdrawn by the petitioner, the dismissal orders passed against the respondents were vitiated in ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 18 law and the respondents became entitled to be reinstated in service and granted all the consequential benefits forthwith. He submits that during pendency of the disputes before the Industrial Court, change of service conditions of the employees or dismissal or termination of the employees cannot be done as long as the service conditions proposed to be changed or the grounds of dismissal or termination are also the subject matter of the pending references before the Industrial Court. He further submits that as per Section 9-A of the ID Act, notices will be required.
14] Learned Counsel further submits that while hearing Section 33 applications earlier, about 118 witnesses were examined, the respondents also examined themselves and voluminous documentary evidence was adduced, and then the applications were withdrawn. He points out that lot of time, energy and money was expended in this exercise. He further submits that when the matter reached almost final stage, the petitioner filed applications for restoration of all it's applications under Section 33 of the ID Act. He submits that if these applications were to be allowed by the Industrial Court, it would cause lot of prejudice to the respondents.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 19 15] The learned Counsel for the respondents further submits that there is no question of involvement of principle of estoppel on law in the present case, as it was a matter of choice for the petitioner to seek permission or approval under Section 33 of the ID Act. He further submits that first it chose to seek the permission and then it opted to withdraw the choice so exercised, which was approved by the Industrial Court and so the petitioner now cannot be allowed to change the stand. He submits that there is no provision in the ID Act conferring power upon the Court to grant permission to restore a withdrawn application. Thus, he submits that the Industrial Court has rightly rejected all these applications by the impugned order. 16] As regards the submission regarding absence of the provision in the ID Act dealing with a situation like the present, I must say that the Industrial Court is not completely powerless. While it is true that there is no express provision made in the ID Act conferring power upon the Industrial Court to order restoration of a withdrawn application, the power to deal with such a situation could be sourced from the inherent power of Civil Court under Section 151 of the Code of Civil Procedure. ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 20 17] In the case of U.P. State Brassware Corpn. Ltd. & another vs. Uday Narain Pandey - (2006) 1 SCC 479, Hon'ble Apex Court has spoken about existence of discretionary power in the Industrial Court to mould a relief in a particular way so as to suit the demands of justice. Hon'ble Supreme Court has held that if the Industrial Court is held to be having no discretionary power as regards moulding of a relief or to grant any such relief as the parties would be found to be entitled to in equity and justice, the courts' function as Court of Justice would be completely impaired. Hon'ble Apex Court, therefore, held that discretionary jurisdiction in a Court need not always be conferred by a Statute, and it is otherwise also vested with it. It also held that as the provisions of the Code of Civil Procedure are applicable to the proceedings under the ID Act, the Industrial Court would have the power to give appropriate relief in case of discharge or dismissal of workmen. The relevant observations of the Hon'ble Apex Court made in this regard appear in paragraphs 36 to 38, which are reproduced thus :
36. The decisions of this Court strongly relied upon by Mr. Sangal, therefore, do not speak in one voice that the Industrial Court or for that matter High Court ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 21 or this Court would not have any discretionary role to play in the matter of moulding the relief. If a judgment is rendered merely having regard to the fact situation obtaining therein, the same, in our opinion, could not be a declaration of law within the meaning of Article 141 of the Constitution.
37. It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not always be conferred by a statute.
38. Order 7 Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court, the Tribunal and the National Tribunal to give appropriate relief in case of discharge or dismissal of workmen.::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 22
18] It is clear that it cannot be accepted as a matter of principle that absent a power in the ID Act to allow restoration of withdrawn application, an Industrial Court cannot exercise it's discretion to consider and decide an application seeking restoration of a withdrawn application on it's own merits. The case of U.P. State Brassware paves the way and it is about existence of discretionary power in the Industrial Court to mould a relief in such a way as to suit the demands of justice, in spite of absence of any specific provision under the ID Act conferring power upon the Industrial Court to grant that relief. I thus find no substance in the argument of the learned Counsel for the respondents made in this behalf.
19] Now, the question would be whether the discretion in the matter should have been exercised by the Industrial Court in favour of the petitioner or not.
20] According to the Industrial Court, the answer must be in the negative for a few reasons. One is that the application seeking restoration of the withdrawn application being based upon a stand inconsistent with the earlier stand of the petitioner ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 23 and incongruent stands being impermissible in law, especially when taken at almost a final stage, the application cannot be granted. The second is that the application does not reveal bona fides of the petitioner and that the petitioner after having contended in Writ Petition No.2534/2008 and Writ Petition No.438/2011 filed by it before the High Court that it is governed by the provisions of the MIR Act and not by the provisions of the ID Act and these petitions having not been withdrawn by the petitioner, cannot be heard saying that the provisions of the MIR Act are not applicable to it and the ID Act is. The third is that great inconvenience would be caused to the respondents, if such applications were allowed by it.
21] According to learned Senior Advocate for the petitioner, the answer that the question deserves has to be positive. He terms the reasoning of the Industrial Court as flawed and against the factual basis of the case. 22] In the opinion of the learned Counsel for the respondents, the question has been rightly answered in the impugned order, and he vouches for it's correctness. The ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 24 learned Counsel for the respondents goes further and says that if any interference with the impugned order is made now, the benefit the respondents would have derived after withdrawal of Section 33 of the ID Act applications by the petitioner, would be taken away and this would cause great prejudice to the respondents. He relies upon the cases of (i) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & others - (2002) 2 SCC 244 and (ii) Indian Telephone Industries Ltd. & another vs. Prabhakar H. Manjuare & another - (2003) 1 SCC 320. He would further submit that if the applications filed under Section 33 of the ID Act are allowed to be restored, the applications would have to be treated as the ones filed for change of service conditions and, therefore, would not be tenable without complying with the requirement of notice under Section 9-A of the ID Act.
23] Let us first deal with the issue of estoppel arising from change in stand of the petitioner. This issue has been dealt with by the Hon'ble Apex Court in the case of Isabella Johnson (Smt) vs. M.A. Susai (dead) by Lrs. - (1991) 1 SCC 494. In this case, the appellant-landlord had filed a suit before the Assistant Judge, ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 25 City Civil Court, Hyderabad against the respondent-tenant for recovery of possession of the suit premises and mesne profits. The respondent-tenant in his written statement took a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit, as the suit fell within the jurisdiction of Rent Controller at Hyderabad. In fact, the appellant-landlord had earlier filed two petitions against the respondent before the Rent Controller seeking eviction of the respondent, but these petitions were rejected by the Rent Controller on the ground that the eviction suit was not maintainable before the Court of the Rent Controller. This conclusion was arrived at on a plea taken to the said effect by the respondent. The said respondent, however, took a contrary plea before the City Civil Court at Hyderabad and submitted that the City Civil Court had no jurisdiction to entertain an eviction suit and the jurisdiction lay with the Rent Controller. The Hon'ble Apex Court held that a Court, which has no jurisdiction in law, cannot be conferred with jurisdiction by applying principle of res judicata. It further held that it is well settled that there can be no estoppel on a pure question of law and the question of jurisdiction involved in that case was seen as a pure question of law.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 26 24] In my opinion, the principle of law laid down in the case of Isabella Johnson is squarely applicable to the facts of the present case. The question as to whether an establishment like the petitioner is governed by the provisions of the ID Act or the MIR Act is a pure question of law and this question cannot be allowed to be answered by the words and conduct of the parties. It is an issue which raises a question of law and, therefore, must be adjudicated upon by a Court of law on it's own merits, that is to say, on the basis of factual scenario of the case and principles of law applicable to it and not by holding a party against it's own words. Even if a party says that it is governed not by the provisions of the ID Act but by the provisions of the MIR Act, it would not clinch the issue in favour of the MIR Act and against the ID Act, for, applicability of a particular Statute to a party or a subject matter is a question of law and hence, would require for it's resolution consideration of the merits of the case. For deciding this question, presence or absence of bona fides is really not relevant, for the actions or conduct of parties would not confer jurisdiction on the Court, which is not otherwise available under law or would not oust the jurisdiction of the Court, conferred on it by law.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 27 25] The analysis of the issue made above, would impel me to find that even though the petitioner had earlier said that it was not governed by the provisions of the ID Act and was subject to the provisions of the MIR Act and later on reversed the contention to say that the ID Act applied and not the MIR Act, the petitioner cannot be estopped from raising a plea contrary to it's previous contention and such new stand would deserve a treatment by considering the merits of the case. 26] There is one more dimension involved in the dispute. This dimension arises from the jurisprudential concept of right and duty. Acknowledged theory of law would tell us that, in abstractum, for every right, there is a corresponding duty. It means that when a right in respect of a claim or benefit or some enjoyment of a property resides in one person, there exists a corresponding duty with another person to fulfill that right or be not an obstacle in realizing of the right by that person. Right and duty are the two sides of the same coin and cannot exist without each other. Individually, a right achieves completeness on the back of a duty and a duty is complete only on the strength of a right. This is the basic attribute of the concept of right and duty ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 28 and it has been described succinctly by the noted Jurist, Salmond, in the words, "..... To ascribe a right to one person is to imply that some other person is under a corresponding duty." (See Salmond on Jurisprudence, 12th Edition by P.J. Fitzgerald published by Universal Law Publishing Co. Pvt. Ltd., Chapter 7, Legal Rights, Section 40 Rights, Page 40). So, in a reiteration, I would say, when a right is conferred upon a person, it also creates a duty in another person to either fulfill the right, if possible, or let it be attempted to be fulfilled by not being a spoilsport.
27] If we closely examine the provisions contained in Section 33 of the ID Act, we would find that the section, in it's basic form, is nothing but a bundle of rights and duties, conferring some rights and creating some duties. It gives a limited protection to an employee against change of his service conditions or his discharge, dismissal or termination in matters or on grounds which are also subject matter of a pending dispute before the authorities named therein till an express written permission of the authority before which the dispute is pending, is obtained by the employer. This protection comes to an ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 29 employee as of right thereby creating a corresponding duty in an employer not to effect change in service conditions or issue dismissal or termination order without express written permission of the concerned authority. Similarly, the provision of Section 33, creates a right in favour of an employer to make an application for seeking approval and a corresponding duty in an employee to not stall the employer at the threshold from making an application. Analyzing the provision of Section 33 of ID Act, in this way, by using the plank of a jurisprudential concept, irresistible conclusion would be that filing of an application seeking approval under this section being a matter of right for the employer, the corresponding duty in the employee would restrain the employee from doing anything which is an obstruction to filing of the application. Opposing or resisting the application on merits by an employee is altogether a different matter, as it arises from his right to defend and present his case in an effective manner.
28] The conclusion so drawn would lead me to uphold the argument of learned Senior Counsel for the petitioner that an act which is sought to be performed as a matter of statutory right by a party cannot be frustrated by applying the principle of estoppel ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 30 saying that as it felt earlier that it need not have asserted it's right then, now cannot be permitted to change the stand and make an effort to realize the right. The corresponding duty created in the employee in the instant case would rather require the employee to at least let the application be filed or be revived, if withdrawn earlier, though the employee would have a right to oppose it tooth and nail on merits of the issue involved. It appears to me that this aspect of the matter, a significant one, has escaped the attention of the learned Judge of the Industrial Court. 29] To summarize the discussion so far made, I would say that as the applicability of the provisions of the ID Act or any other law is an issue which involves pure question of law, the principle of estoppel would not bar the petitioner from raising a plea for restoration of it's applications filed under Section 33 of the ID Act, which were previously allowed to be withdrawn by the Industrial Court. I would also find that the legal dimensions of the issue would demand that the petitioner must be allowed to revive the plea made on the basis of the right available to the petitioner under Section 33 of the ID Act and no party can be permitted to do anything which is an obstacle in the process of ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 31 assertion of a statutory right, with grant or rejection of such a right on merits of course being a separate aspect. 30] In the case of Rameswar Sarkar vs. State - AIR 1986 Calcutta 19, the Division Bench of the Calcutta High Court has taken a view that inherent power under Section 151 of the Code of Civil Procedure can be exercised by allowing withdrawal of the application for withdrawal of the suit, if there exist justifiable reasons and this view of the Calcutta High Court has been affirmed by the Hon'ble Supreme Court in case of Jet Ply Wood (P) Ltd. & another vs. Madhukar Nowlakha & others - (2006) 3 SCC 699. The principle that inherent power under Section 151 of the Code of Civil Procedure can be exercised in favour of a party in a case for withdrawal of the application, if there are justifiable reasons to do so, can also be applied to the facts of the present case involving an issue of restoration of a withdrawn application. Some of the justifications for exercise of Section 151 power in favour of the petitioner have already been given by the petitioner and I have found substance in them, as discussed in the previous paragraphs .
In addition to what is said earlier, there are, as I see, some more circumstances which go in favour of the petitioner, and they need to be taken note of, I would now refer to them. ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:09 ::: wp.4962.18.jud.odt 32 31] It is seen from the impugned order that the learned Judge of the Industrial Court has not considered the obligation cast upon it by this Court when it disposed of all the petitions challenging the order of the Industrial Court giving the respondents liberty to approach the appropriate forum for seeking adjudication upon the issue of existence of employer- employee relationship between the petitioner and the respondents while disposing of the applications filed by the petitioner under Section 33 of the ID Act by the common order passed on 10/01/2017. While disposing of these petitions, this Court considered the pendency of Reference Nos.2/2001 and 06/2004 and the submissions of the parties that all the applications filed by the petitioner under Section 33 of the ID Act ought to have been decided by the Industrial Court along with the said pending reference proceedings and found merit in them. This Court then set aside the common order of the Industrial Court and remanded the matter back to it for deciding those applications along with Reference Nos.2/2001 and 6/2004. This Court specifically directed that the Industrial Court shall not permit the parties to amend the pleadings or file additional documents in the proceedings and most importantly further ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 33 directed that the proceedings under Section 33 of the ID Act shall be disposed of after hearing the parties. This important direction appears in clause (vii) of the operative part of the order dated 10/01/2017. For the sake of convenience, it is reproduced as under :
"(vii) It is clarified that the Industrial Court shall not permit the parties to amend the pleadings or to file additional documents in the proceedings under Section 33 of the Industrial Disputes Act, 1947. The proceedings under Section 33 of the Industrial Disputes Act, 1947 shall be disposed, after hearing the parties."
32] Even a cursory perusal of clause (vii) of the operative portion of the order dated 10/01/2017 is sufficient for us to conclude that no room was left by this Court for allowing withdrawal of the applications filed under Section 33 of the ID Act by the petitioner and that a duty had been cast upon the parties as well as the Industrial Court to decide those applications after hearing the parties. In other words, a clear direction was given for deciding these applications on merits and not on the basis of the sweet will or choice of any of the parties to pursue or not to pursue the applications. It appears that some ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 34 how or the other, this direction was missed by the Industrial Court initially when it allowed withdrawal of Section 33 applications and that was a mistake committed by it. Unfortunately, none of the parties thought of getting it corrected from the High Court either. But, later on, an opportunity came the way of the Industrial Court to make good for the mistake so committed previously and having regard to the specific direction given by this Court, the Industrial Court ought to have directed restoration of Section 33 of ID Act applications and proceeded to decide the applications on merits so as to ensure compliance with the direction of this Court. But, the opportunity was frittered away, and the mistake was repeated, which at least now deserves to be corrected. On this ground also, I find that the impugned order cannot be sustained in the eye of law. 33] The learned Counsel for the respondents has an objection on the ground that there has been a deliberate effort on the part of the petitioner to prolong the matter and cause as much inconvenience and loss to the respondents as is possible. The anxiety of the respondents is worth considering, especially when the petitioner filed restoration applications at a stage when ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 35 the matter was about to be fixed for the judgment. At the same time, the nature of the provisions contained in Section 33 of ID Act and discussed earlier would show that the petitioner has a right to make these applications which, as a part of duty of the employee, cannot be obstructed by him at the threshold and that principle of estoppel has no application here. This would make this Court direct itself to strike a balance between these competing claims and as rightly submitted by the learned Senior Counsel, it can be done reasonably well by imposing a condition of payment of costs to the respondents by the petitioner. 34] There are a few more submissions of the respondents that need to be dealt with now. It is contended that great prejudice would be caused to the respondents if the restoration applications are allowed, that the respondents would be deprived of the benefits that they have derived after withdrawal of Section 33 of ID Act applications and that Section 9-A of the ID Act notices would be necessary.
35] About the first submission, I would say, it is without any merit in it for the reason that what would result from ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 36 restoration of the withdrawn Section 33 applications is only revival of something which is a matter of right for the petitioner and a pure question of law deserving it's adjudication on merits by the Court irrespective of the words or conduct of the parties. In such matters, the question of prejudice, at least at the stage of filing of applications under Section 33 of the ID Act does not arise. If it is to arise, it would only be at a stage when the question of granting the applications on their own merits is taken up for consideration by the Industrial Court, which could then be decided in accordance with law by the Industrial Court. The respondents, therefore, can always raise the question of prejudice at the time of consideration of Section 33 of ID Act applications on their own merits by the Industrial Court. As regards the second submission too, similar view can be and is expressed. It pertains to merits of the matter and so be accordingly raised.
36] The learned Counsel for the respondents has placed reliance upon the cases of Indian Telephone Industries and Jaipur Zila Sahakari Bank (supra) wherein it has been held that any failure to make application under Section 33 of ID Act seeking ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 37 approval of the order of discharge or dismissal or any step taken for withdrawal of such an application after having made it, would render the order of discharge or dismissal void and inoperative. In the present case, although Section 33 of ID Act applications have been previously permitted to be withdrawn by the petitioner, now the situation is that the petitioner has made a fervent plea to grant permission for revival, and this development has not accorded finality to the step of withdrawal of applications taken earlier. The plea so made by the petitioner has also been found, for the reasons stated earlier, as worthy of being allowed. Therefore, at this stage, principles of law laid down in these cases would not be applicable and they would have to be considered at the time of finally deciding the applications filed under Section 33 of the ID Act by the Industrial Court in accordance with law.
37] Besides, this Court while considering the legality and correctness of the interim relief of reinstatement in service granted to the respondents by the Industrial Court during pendency of the complaints filed under Section 33-A of the ID Act, has found that the ratio of Zila Sahakari Bank (supra) cannot ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 38 be applied to the case so as to justify the grant of reinstatement by way of interim relief for the reason that if final relief of reinstatement depends upon misconduct being proved by the employer and the interim relief of reinstatement also being dependent on the very issue, grant of interim relief by way of reinstatement would be impermissible as held in the case of (i) Zila Sahakari Bank (supra), (ii) Punjab National Bank Ltd. vs. All India Punjab National Bank Employees' Federation & another - AIR 1960 SC 160, (iii) The Delhi Cloth & General Mills Co. Ltd. vs. Shri Rameshwar Dayal & another - AIR 1961 SC 689 and (iv) P.H. Kalyani vs. M/s. Air France, Calcutta - AIR 1963 SC 1756. It appears that the view taken by this Court still holds the field, it not being upset by the superior Court, and this would be the additional reason for me to say that at this stage, the question of prejudice cannot be said to have arisen.
38] All the aforestated aspects of the matter have not been either considered or improperly considered by the learned Judge of the Industrial Court while passing the impugned common order and, therefore, the impugned order cannot stand the scrutiny of law. The impugned order commonly passed ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 39 deserves to be quashed and set aside and the applications filed for restoration of the withdrawn applications allowed. 39] The writ petitions are allowed. The impugned common order is quashed and set aside. The applications filed by the petitioner under Section 33 of the ID Act are restored to the file of the Industrial Court and it is directed that they shall be decided from the stage of the argument in terms of the order dated 10/01/2017 passed by this Court while disposing of bunch of writ petitions earlier, and in accordance with law, as expeditiously as possible, subject to the condition that the petitioner deposits the costs, in the Industrial Court, at the rate of Rs.25,000/- (Rupees Twenty Five Thousand Only) per respondent and payable at this rate to each of the respondents, within a period of four weeks from the date of the order, and on such costs being deposited, the respondents shall be permitted to withdraw the costs at the rate of Rs.25,000/- per respondent without reference to this Court. Any failure to comply with the condition would result in dismissal of restoration applications without reference to this Court.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 ::: wp.4962.18.jud.odt 40
40] Rule is made absolute in the above terms. Disposed of accordingly.
(S.B. Shukre, J.) *sandesh ::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 11:40:10 :::