Bombay High Court
M/S. S.S. Miranda Ltd. vs Shri Rangbahadur Singh & Others on 23 April, 1998
Equivalent citations: 1998(3)BOMCR814, 1998(2)MHLJ861
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. Rule. Respondents waive service. By consent heard forthwith.
2. Both these petitions are being disposed of by a common judgment though they arise from two references. The incident in respect of which the respondents in both the cases were charge sheeted and the date of the incidents are the same. The evidence is also the same. Questions of law that arise for consideration are the same and consequently this common judgment.
3. Separate Charge Sheets were issued to the respondents in both the cases which are dated 26th September, 1986. It was therein alleged that on 23rd September, 1986 the Charge Sheeted workmen not only resorted to but also instigated others to strike without notice and further gherao and instigated other workers to gheraoed Shri Wagle. It is then contended that the respondents workers along with few others indulged in disorderly and indisciplined behaviour. The next incident alleged is of 24th September, 1986 wherein it is alleged that when the Works Manager, who had issued the charge sheet went for a round on the shop floor the respondent workers instigated other workmen to hoot and shout at the Works Manager. The workers were charge sheeted under the Model Standing Orders 24(b), 24(k) and 24(l). An enquiry was conducted. Based on the enquiry the services of both the respondents came to be terminated.
4. Before the actual act of termination the Union representing the workers in the establishment filed a complaint under the provisions of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the M.R.T.U. & P.U.L.P. Act) in respect of the threatened action of the petitioner company to dismiss the respondents from service. Interim relief was prayed for, which was rejected. Subsequent to that the respondent workers were dismissed from service.
5. Proceedings in conciliation were initialed in respect of the dismissal of the respondent workmen. The Appropriate Government i.e. the State Government in this case, was pleased to refer the dispute for adjudication to the Labour Court. Before the Labour Court the parties filed their Claims Statement. On behalf of the petitioners it was contended that the references had to be rejected as complaints in respect of the same cause of action had been preferred before the Labour Court. In the meantime the complaints before the Labour Court were withdrawn and as such there was no complaints pending before the Labour Court. At the hearing of the references, preliminary issue was framed regarding the fairness of the enquiry. The Labour Court by its Part I Award dated 26th February, 1997 arrived at a conclusion that the enquiry conducted against the workers was not conducted in a fair and proper manner. Subsequent to this the employer sought opportunity to lead evidence. Evidence of the employer as well as the workmen was led.
6. At the hearing of the reference it was contended on behalf of the petitioner that the reference ought to be rejected as it was barred by section 59 of the M.R.T.U. & P.U.L.P. Act. The Labour Court which was hearing the Industrial Reference has observed that it has perused the record and proceedings of the earlier complaint filed by the Union. The Labour Court observed that the said complaint was not finally decided by the Court. It was filed by the Union and not by the workmen and was withdrawn before adjudication in the year 1995. The Labour Court thereafter noted that when the workmen and the Union have not proceeded with the complaint and have dragged the petitioner company into litigation the ends of justice would be met if the costs were Awarded against the workmen and quantified the same at Rs. 5,000/-. The Labour Court held that the reference was not barred under section 59 of the M.R.T.U. & P.U.L.P. Act.
7. In Writ Petition No. 757 of 1998 the Presiding Officer, Labour Court, directed reinstatement, however, noted that the workman had already crossed 60 years of age and as such he would be entitled only to full back wages less a sum of Rs. 5,000/ - imposed by way of costs.
In Writ Petition No. 756 of 1998 the petitioners were directed to reinstate the workman with full backwages and continuity of service with effect from 2nd August, 1997 after deducting Rs. 5,000/- by way of costs.
8. It is against these Awards that the above petitions have been preferred.
9. At the hearing of the petition it is contended on behalf of the petitioner company that the findings of the Labour Court that the reference was not barred under section 59 of the M.R.T.U. & P.U.L.P. Act was clearly an error of law apparent on the face of the record. It is pointed out that in the case of Shri Shivaji Agricultural College, Amravati v. Mukhtyar Ahmed s/o. Haji Mian Sheikh and another, 1987 Mah. L.J. 646, a Division Bench of this Court has held that once the choice is made and the Forum elected, the other remedy is lost and proceedings under the other Acts cannot be entertained. It is then contended that another Single Judge of this Court in the case of R.A. Thorat v. Trinity Udyog & others, 1997(1) C.L.R. 824 has followed the said judgment of the Division Bench in the case of Shri Shivaji Agricultural College (supra). It is contended that the judgment in the case of Indian Hotels Co. Ltd. v. D.Y. Pandey, 1991 (2) Bom.C.R. 553 :1991 (I) C.L.R. 324, which has taken a contrary view can be distinguished on the facts of that case. It is contended that in so far as the judgment in Indian Hotels Co. Ltd. (supra), the learned Single Judge proceeded on the footing that in respect of apprehended action including that of a dismissal or termination no complaint would be maintainable as the said complaint will be without jurisdiction, and hence the reference was maintainable. The said judgment it Is contended is impliedly over ruled by a subsequent judgment of the Apex Court in Hindustan Lever Ltd. v. Ashok Vishnu Kate and others, 1996(1) L.L.J. 899.
It would, therefore, be relevant to examine section 59 of the M.R.T.U. & P.U.L.P. Act for the purpose of deciding the issue. Section 59 reads as under:---
"59. Bar of proceeding under Bombay or Central Act:---If any proceeding in respect of any matter falling within the purview of this Act is instituted under this Act then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or, as the case may be, the Bombay Act, then no proceeding shall at any time be entertained by the Industrial or Labour Court under this Act."
The accepted rule of construction in the matter of ouster of jurisdiction is that, ouster should not be necessarily informed but strictly construed. Proceedings under the M.R.T.U. & P.U.L.P Act is in respect of unfair labour practice can be filed under section 28 of the M.R.T.U. & P.U.L.P Act by a Union or any employee or any employer or any Investigating Officer. In case of a complaint of unfair labour practice committed by the employer it would therefore, be a Union, employee or any Investigating Officer who could maintain the complaint.
In the instant case in fact two complaints were filed by the Union and not by the employees. The complaints were not pursued but withdrawn during the pendency of the reference. The first complaint was in respect of holding the enquiry itself and the second complaint based on apprehended or threatened dismissal and not actual dismissal. In these circumstances it will have to be examined whether the filing of the complaints by the Union against the employer in respect of the holding of the enquiry and the alleged threatened dismissal of the workmen, whether section 59 would be attracted. In dealing with the said issue reference will have to be made to the judgments cited at the bar on behalf of the petitioners.
10. The first judgment is of the Division Bench of this Court in the case of Shri Shivaji Agricultural College (supra). The facts of that case were that one Mukhtyar Ahmed was in the employment of the College as a Clerk-cum-Typist since 2nd August, 1963. He remained absent from 16th February. 1978 to 19th May, 1978 without permission. His services came to be terminated. Being aggrieved by the order of termination he filed a complaint on 18th January, 1979 before the Labour Court at Akola under section 7 read with section 28 of the M.R.T.U. & P.U.L.P. Act, 1971. The complaint came to be dismissed on the ground of limitation on 15th June, 1981. Mukhtyar Ahmed thereafter initiated proceedings for reference under the Industrial Disputes Act in respect of the same matter. Conciliation was not possible and reference was made by the Government to the Labour Court. In the reference the College raised several contentions including the maintainability of the proceedings in view of the order dated 15th June, 1981 passed under the Act of 1971. The Labour Court held that it was in fact a case of dismissal on the ground of misconduct without any Departmental Enquiry and, therefore, the termination was bad and as a consequence thereof directed reinstatement with continuity of service, but on the facts and circumstances denied the claim for back wages. The Division Bench however, held that having regard to the clear cut language used in the above provision the contention about non-maintainability of the complaint was well founded and rejected the contention of the Counsel for Mukhtyar Ahmed that the decision under the 1971 Act being not on merits would not stand in the way. The Division Bench noted, that would make no difference to the applicability of section 59. The Division Bench thereafter went on to hold that Institution means presentation of the matter. This is the first stage, second being entertaining, the third being the trial and the fourth being the decision and in that case the fourth stage was over, if the bar operates even if the first stage is reached, it was difficult to see how it will cease to operate only because at the final stage, the matter is decided only on limitation and further it was wrong to assume that section 59 is based only on principles of res judicata. The Legislative policy seems to restrict the choice of remedy and forum and once the choice is made and the matter is presented, the other remedy is lost and proceedings under the other Act cannot be entertained. It must, therefore, be noted that in that case the earlier complaint filed was dismissed as being barred by limitation. It must be also noticed that the complainants in the complaint under the M.R.T.U. & P.U.L.P. Act and the complainants and the party in the reference were the same. The complaints as well as the references were in respect of the actual act of dismissal. The cause of action was the same.
In the case of R.A. Thorat (supra), the petitioners before this Court were ex-employees of Trinity Udyog. On account of some disputes the employer decided to close down part of operations. Thereafter by notice dated 28th May, 1986 the employer closed down the Hacksaw Department and terminated the services of all workmen in the Hacksaw Department with effect from 29th May, 1986. The petitioners therein raised Industrial dispute with regard to their retrenchment which were referred to the Labour Court. The Labour Court held that the references were not maintainable as earlier a complaint had been filed on behalf of the workmen in which the cause of action and the relief sought were identical and consequently reference under the Industrial Disputes Act was barred by section 59 of the M.R.T.U. & P.U.L.P. Act. On behalf of the workmen it was contended that the earlier complaints filed by the Union were invoking the provisions of certain items of Schedule II and Schedule IV of the Act and the contention was that these were unfair labour practice on the part of the 1st respondent. It has been further contended that in the reference before the Labour Court the issue directly referred was the Industrial Dispute regarding the illegal and improper termination of services. The learned Single Judge relied in the case of Maharashtra State Road Transport Corporation v. Present and etc., 1985 L.I.C. 1012 of a Division Bench of this Court. Therein the proceedings were initiated under section 33(2)(b) of the I.D Act for approval of the orders of termination passed against some of the employees. Simultaneously the employees moved the Industrial Court under section 28 of the M.R.T.U. & P.U.L.P. Act. It was contended that the proceedings under the M.R.T.U. & P.U.L.P. Act were barred as proceedings under section 33(2) of ID Act were pending. The learned Judge has reproduced the observations of the Division Bench overruling the said contention and it will be worthwhile to reproduce the same herein below:---
"The Bar under section 59 of the Maharashtra Act is not an absolute one-not impervious, impregnable wall to all manner of sorts of proceeding- but a sieve through which certain type of proceedings can permeate. It only prohibits duplicating of proceedings if some, in respect of matter which falls within the purview of the Maharashtra Act, are already pending under the I.D. Act."
The learned Judge also noted the judgment of another Division Bench of this Court in the case of Consolidated Pneumatic Tool Co. (I) v. R.A. Gadekar & others, , wherein the Division Bench considered the expression "Institute" under section 59 and observed as under:---
" The word "institute" as used under section 59 of the M.R.T.U. & P.U.L.P. Act can be taken as meaning "setting on foot an enquiry" which means something more than mere filing of a complaint. Where the applicant does nothing more than filing a complaint under the Act, and withdraws if before any effective steps are taken, then the provisions of section 59 of the Act will not apply. The Industrial Tribunal was wholly right in taking a view that present proceedings under the Industrial Disputes Act are not barred by the provisions of section 59 of the M.R.T.U. & P.U.L.P. Act."
The learned Judge went on distinguish the said judgment on the ground that not having had the complaint being instituted but further steps had been taken by way of interim relief which had been rejected. The learned Judge thereafter proceeded to follow the judgment of the Division Bench in the case of Shri Shivaji Agricultural College (supra).
The last judgment cited and then distinguished is of another Single Judge in the case of Indian Hotel Co. Ltd. (supra) wherein it had been held that a case of apprehended termination was beyond the jurisdiction of the courts under M.R.T.U. & P.U.L.P. Act. The contention raised is that the said judgment stands impliedly overruted subsequent to the judgment of the Apex Court in the case of Hindustan Lever Ltd. v. Ashok Vishnu Kate and others (supra). The matter came up before the Apex Court from a judgment of the Division Bench of this Court. The Division Bench of this Court had held that the complaint could be filed not only in respect of actual dismissal ,or termination, but even in a case of threatened action to terminate or dismiss. The Apex Court upheld the judgment of this Court. It is, therefore, contended that in Indian Hotels Co. Ltd.'s case the learned Single Judge proceeded on the footing that no complaint in respect of contemplated dismissal would be maintained and cause of action would accrue only on passing of actual order of dismissal, discharge or termination and not earlier. This judgment, according to the learned Counsel, therefore, has been expressly overruled by the judgment in the case of Hindustan Lever Limited (supra).
11. Considering these judgments, was the reference barred? One of the complaints before the Labour Court was filed under Item 1(d), 1(f) and 1(g) of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. In the said complaint it was averred that the Enquiry Officer on 18th May, 1988 had issued threats to the workmen. It was apprehended that the company would impose punishment of dismissal or discharge which would not only be grossly disproportionate but suggest victimisation. The workmen in respect of whom the complaint was made are the present respondents in the two petitions. Earlier to this complaint, one more complaint had been filed by the Union being Complaint (ULP) No. 260 of 1986 under Item 1(a), (b), (d) and (f) of Schedule IV of M.R.T.U. & P.U.L.P. Act. This complaint was in respect of 7 workers including the present two workers. The said complaint was in the matter of continuing with the domestic enquiries, Complaint (ULP) No. 174 of 1988 was stayed on account of Complaint No. 260/86. Both the complaints were by the Union. Both the complaints were subsequently withdrawn.
12. The first complaint bearing No, 260 of 1986 was in respect of enquiries being conducted against several workers including the two respondents herein. The complaints were filed at the stage where the domestic enquiries were going on. The cause of action thus would be the action of the employer in holding the domestic enquiry. At that time the stage of termination had not yet been reached. The cause of action was the holding of the enquiries. The second complaint is in respect of the present respondents alone. The said complaint was based on the fact that out of 7 charge sheeted workers, five had sought for voluntary retirement offered by the company and had accepted the same. The complaint was on the ground that the enquiry was instituted patently for false reasons and in colourable exercise of the power with ultimate aim to victimise the workers for legitimate trade union activities. The Enquiry Officer conducted the enquiry in contravention of the principles of natural justice and fair play. The immediate cause for the complaint was the threat by the Enquiry Officer that the workmen should accept the voluntary retirement failing which they would be dismissed. The actual act of dismissal had not yet taken place. The Enquiry Officer was not the disciplinary authority. The cause of action was threatened dismissal. It is true that in the case of Hindustan Lever Limited (supra) the Apex Court has noted that from the language of section 28 that it is possible to hold that the complaint can cover two types of grievances against the employer viz. (1) that he has engaged in unfair labour practice and (2) he is engaging in unfair labour practice. The Apex Court noted that the Labour Court could entertain the complaints on the additional ground that the employer engaged in unfair labour practice, which clearly indicates a person's continuous action as it reflects a present continuous tense, which would include the complaint regarding the employer who had presently engaged in alleged unfair labour practice by way of victimisation. The Apex Court then noted that this would indicate actions which are contemplated in pipeline, but which had still not been finally completed. All that can be said from the said judgment is that the courts under the M.R.T.U. & P.U.L.P. Act would have jurisdiction to entertain the complaint that the employer engaged in unfair labour practice which included threatened action which is in the pipeline.
In the light of this let us now re-examine the judgment cited at the bar. The Division Bench in the case of Shri Shivaji Agricultural College proceeded on the footing that once the choice is made and the matter is presented, the other remedy is lost and proceedings under the other Acts cannot be entertained. Another Division Bench in the case of Consolidated Pneumatic Tool Co. Ltd. v. R.A. Gadekar & another, 1986(1) C.L.R. 322, was considering the expression 'institute' for the purpose of section 59. I have already reproduced the relevant observations of the Division Bench in the said case in the earlier part of the judgment The judgment in Shri Shivaji Agricultural College (supra) was rendered on 27th September, 1985 and the judgment in Consolidated Pneumatic Too! Co. Ltd, (supra) was rendered on February 28, 1986. In Consolidated Pneumatic Tool Co. Ltd., the Division Bench held that mere institution of the complaint by itself is not sufficient for invoking the bar of section 59. The complainant therein had to take some effective steps and if he withdraws the complaint before any effective steps are taken then the provisions of section 59 will not be attracted.
In the instant case the parties are different. In one case it is the Union which had complained of and in the other case they are individual employees. It is true that the complaint filed by the Union was on behalf of the individual employees. However, the language of section 20(2) of the M.R.T.U. & P.U.L.P. Act is clear that even if there is a recognised Union the right of an individual employee to maintain the complaint under the Central Act is not taken away. In these circumstances it will not be possible to accept that merely because the complaint was filed by the recognised Union against the threatened dismissal which has subsequently been withdrawn the bar under section 59 would not spring. Parties therefore may not matter. What matters however would be the cause of action and the reliefs sought based thereon.
In the instant case there are no complaints now pending before the courts under the M.R.T.U. & P.U.L.P. Act. If the reference under the I.D. Act is rejected the remedy of the respondent-workers would be lost. In other words the right which they had to challenge the action of dismissal would not be available to them. When a section pertains to ouster of jurisdiction is considered it cannot be construed in such a manner which would result in taking away the remedy which would result in denial of pursuing the right itself. The construction of such a section must be in consonance with the principle that a party aggrieved must have a remedy at law, and the construction must be to protect such a remedy. It is true that section 59 if seen in the correct context was introduced so that in respect of the same subject matter the proceedings are not initiated at the same time before a different forum. In the case of Hafizullah Khan s/o. Bashirullah Khan v. Maharashtra State Road Transport Corporation, 1992(II) C.L.R. 2365 the petitioner was dismissed from services and filed a complaint of unfair labour practice. The complaint was withdrawn before the respondent filed written statement. Later the State Government made reference as regards the same dispute. Relying on the earlier judgment of this Court it was held that withdrawal of unfair labour practice complaint under the M.R.T.U. & P.U.L.P. Act does not attract bar of section 59 of the said Act and the reference under section 10 of the I.D Act is not in any way affected for complaint having filed and later withdrawn.
13. In the light of what has been stated above let us now examine the present case. The causes of action based on which both the complaints were filed were distinct from the causes of action based on which the reference is made. The relief available also would be different. In my view therefore, the mere fact that the complaints had been filed which complaints have been subsequently withdrawn and in the instant case the complaint of threatened dismissal was stayed on account of the pendency of the other complaint regarding initiation of domestic inquiries being investigated the bar of section 59 would not apply and this contention has to be rejected.
14. That takes us to the merits of the matter. The Labour Court has noted that the major point canvassed before it was the applicability of section 59 of the M.R.T.U & P.U.L.P. Act. The Court, however, has also considered the evidence on record and has held that the misconducts were not proved. In the instant case the charge sheet dated 26th September, 1986 refers to an incident of 23rd September, 1986. In support of these incidents the employer before the Labour Court examined C. Dwarkanath Waikund, the Personal Officer. He deposed to an incident of 26th September, 1986, which was not the subject matter of the charge sheet. The next witness examined is Shri Karukulam V. Joseph. He also deposes to the incident of 26th September, 1986 which again is not the subject matter of the charge sheet. In respect of the incident of 24th September, 1986 in his affidavit he has stated that the two respondents led the workmen and instigated the other workmen to hoot, shout and abuse the Works Manager on his usual round on the shop floor. The said witness was working as Security and Establishment Officer. He has not given any complaint against the respondents in respect of the facts alleged in the affidavit. He states that he saw the respondent in Writ Petition No. 757 of 1998 on the third floor. He does not remember whether he made any entry about the incident immediately after the occurrence. The workman examined himself. In para 10 of the affidavit he has deposed that he was suspended on 24th September, 1986 pending enquiry and disciplinary action in respect of incident of 23rd September, 1986. In the cross examination nothing has been brought on record in respect of the incident in respect of which the worker was suspended. The entire cross examination is in respect of the incident of 23rd September, 1986. As pointed out earlier one of the charges was in respect of the incident of 23rd September, 1986 in respect of which the witness examined on behalf of the company viz. Shri Dwarkanath Waikund as also K.V. Joseph have not deposed to in their examination-in-chief.
15. In so far as the respondent in Writ Petition No. 756 of 1998 is concerned, even K.V. Joseph, witness in his examination-in-chief did not refer to any incident in respect of the said respondent except saying that the said two workers led a mob of workmen. He has not deposed that he saw that the respondent workers in the like manner which he saw the other workmen.
16. The Labour Court considering the evidence has arrived at a conclusion that the charge of misconduct has not been proved. While exercising the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution this would not be a case to interfere with the findings of fact recorded by the Court below in the absence of the petitioners showing any perversity in the said findings. I have already pointed out that on perusal of the evidence it is not possible to arrive at a conclusion that the findings of the Labour Court are perverse.
17. For the aforesaid reasons, I find no merits in these writ petitions. Rule discharged. In the circumstances, there shall be no order as to costs.
18. Petition rejected.