Bombay High Court
Dalal Engineering Pvt. Ltd. vs Ramrao Bhaurao Sawant And Others on 20 September, 1991
Equivalent citations: 1991(4)BOMCR571, (1992)IILLJ384BOM, 1991(2)MHLJ1534
JUDGMENT
1. This writ petition impugnes the Orders of the First Labour Court, Thane, dated September 23, 1987 and May 30, 1988, as confirmed by the Industrial Court in revision by the Industrial Court's Order dated April 7, 1989. The proceedings in the two Courts below were under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act")
2. The petitioner is a private limited company, which carries on business as structural engineers and fabricators of industrial engineering equipment. For this purpose, they are required to get steel and other raw-material from their customers and carry out fabrication thereof within their factory. The first respondent is an employee of the petitioner working as a Fitter. One workmen, by name T. B. Patel, was dismissed by the petitioner on September 25, 1986, after he was found guilty of certain misconduct proved against him at a duly held domestic enquiry. It appears that the dismissal of this workman, Patel, became a prestige issue with the first respondent and certain other workmen who instigated a stay-in strike for reinstatement of the said Patel. After carrying on the stay-in strike till about 1986, respondent no. 1 and other workmen restored to picketing and obstruction of movement of men and material. The Petitioner filed a complaint before the Industrial Court, Thane, and obtained an ad interim order of injunction on November 26, 1986, restraining the Association of Engineering Workers, the trade union representing the workmen and several other workmen from, inter alia, obstructing delivery of goods or movement of material and receipt of material. It appears that, at about the same time, without the petitioner being aware of it, the union had also filed a Complaint (ULP) No. 462 of 1986, and obtained an ex parte order of injunction therein. The workmen took up the stand that the order of injunction restrained the petitioner-employer from moving men and material in and out of its factory and it had virtually the effect of annulling the earlier order of injunction granted on November 26, 1986 in the petitioner's complaint. The Industrial Court was moved by an application by the petitioner and the Industrial Court, by an Order dated November 27, 1986, clarified that its earlier order made in Complaint (ULP) No. 460 of 1986 was not nullified by the order made in the Union's complaint (ULP) No. 364 of 1986. The Industrial Court also explained therein that the cumulative effect of the two orders was that the petitioner could remove finished and also semifinished goods and raw-material for job work as per existing practice and the workers should not obstruct the same until further orders. Despite this clarification given by the Industrial Court, the workmen, led by respondent no. 1 and others, continued to obstruct the movement of men and material to and from the factory. A charge-sheet dated December 1. 1986, was served on the first respondent alleging specific charges in connection with such obstruction and other misconduct which took place on November 29, 1986. Surprisingly, the first respondent, in his explanation dated December 5, 1986, took up the stand that the petitioner's taking away of material, machinery parts, raw-material etc. from the factory premises, was a violation of the order of injunction granted by the Industrial Court and that the interpretation thereof, as clarified by the Court, was not acceptable to the workmen. In the circumstances, the first respondent justified the act alleged against him and denied that he was guilty of any misconduct.
3. During the period January to April 1987, an enquiry was held into the charge-sheet given to the first respondent. The first respondent attended the enquiry. Incidentally, it may be mentioned that, apart from the first respondent, certain other workmen were also charge sheeted, and the enquiry was commenced against them also. They had also participated in the enquiry during the above period. On April 16, 1987, all the charge-sheeted workmen, who were present for the enquiry, walked out and refused to participate in the enquiry. From April 16, 1987, the workmen, led by respondent no. 1 and others, intensified their acts of interfering with the work of the factory by gherao of the packing contractor and his workers, which resulted in the Police having to be called to clear them. Surprisingly, though the workmen had categorically refused to work claiming to be on strike, the petitioner-employer had permitted the striking workmen to enter the premises of the factory every day, though they were not carrying out any work. Better sense prevailed thereafter, and the employer put up a notice on April 20, 1987, informing the workmen that they would be permitted to enter the factory only if they were willing to work. On April 21, 1987, a second charge-sheet was given to the first respondent in respect of certain further misconduct alleged to have been committed by him. Since, by this time, the striking workmen, including the first respondent, were not allowed to enter the factory premises and as they had refused to participate in the ongoing enquiry, they were called upon by a newspapers advertisement to attend the enquiry. During the month of May, and upto June 10, 1987, the workmen attended the enquiry in connection with the first charge-sheet. On June 10, 1987, the enquiry in connection with the second charge-sheet dated April 21, 1987, was scheduled. The workmen attended this enquiry also upto about June 26, 1987, on different dates. On June 27, 1987, when the enquiry into the second charge-sheet was scheduled, the first respondent, once again, staged a walk-out and refused to participate therein. In July and August, 1987, enquiries into both the charge-sheets were held and completed ex-parte, as the charge-sheeted workmen, including the first respondent, had refused to participate in the enquiry. It appears that, by an Order made on May 27, 1987, under Section 25 of the Act, the Second Labour Court had declared the strike of the workmen as illegal. Some time in July 1987, some of the workmen gave individual undertakings of carrying on normal and peaceful work, and indicated that they had withdrawn their strike. All workmen, barring the workmen against whom disciplinary enquiries were pending, were permitted to resume work. Respondent no. 1 and the other workmen, against whom disciplinary enquiries were pending, were suspended pending the enquiry.
4. On September 22, 1987, the first respondent moved a Complaint (ULP) No. 364 of 1987 before the Labour Court, Thane, purportedly under Section 28 read with Item 1(a), (b), (d), (f) and (g) of Scheduled IV of the Act. The only apprehension expressed in the complaint was that, with the alleged plea of non-participation in the enquiry, the petitioner may terminate the employment of the first respondent. It was alleged that all charges were patently false and, in the alternative, that they were not of such serious nature as to warrant dismissal from employment and that the order of dismissal, if passed, would be disproportionate punishment. On this apprehension, an allegation was made that there was an apprehended unfair labour practice within the meaning of Item I of Schedule IV of the Act. An application for interim relief was also moved, in which the relief sought was an order of restraint against the petitioner from terminating the service of the first respondent without permission of the Court. On this material, the Labour Court issued an ex parte order dated September 22, 1987, restraining the petitioner form terminating the employment of the first respondent without the permission of the Court. After this order was served on the petitioner, the petitioner appeared before the Court and filed his affidavit showing cause on October 8, 1987, in which he prayed that the ex parte order of restraint be vacated for reason shown therein. What transpired from October 8, 1987 to January 5, 1988 is not clear. The learned advocate stated that oral arguments were being heard. Even if this is so, surely, it could not have been heard on all the intervening dates during the period. On January 5, 1988, the application for interim relief, once again, came to be heard by the Labour Court. During the hearing of the application, the Court suggested to the petitioner that, though the first respondent might have refused to co-operate and participate in the enquiries against him by walking out, it would be better if the petitioner were to hold a fresh domestic enquiry, instead of relying upon the findings of the earlier enquiry, which had been completed ex parte. Though the petitioner does not appear to have given up its right to sustain the correctness of the previous enquiry, in order to cut the matter short, the petitioner accepted this suggestion of the Court, provided the first respondent was willing to co-operate and participate in the fresh enquiry. The first respondent did assure the Court and undertake that he would co-operate in the holding of the fresh enquiry. One might have thought that, upon the petitioner agreeing to hold a fresh enquiry, the grievances, if any, against the previous enquiry would automatically come to an end and the cause of action, if any, for the complaint has itself ceased to exist. Surprisingly, neither party, nor the Court, went into this aspect of the matter. The Labour Court merely adjourned the hearing of the application for interim relief, thereby continuing the ex parte ad interim Order dated September 22, 1987. During the period January to March, 1988, the petitioner conducted a fresh enquiry into the two charge-sheets given to the first respondent. The first respondent not only participated in the enquiry, but was even allowed to be represented by an advocate. Despite being represented by an advocate at the enquiry, in order to obviate all allegations of not comprehending what transpired at the enquiry, the proceedings from day-to-day were specifically explained to the first respondent in Marathi, which is the language understood by him. Incidentally, though the first respondent was represented by a lawyer at the domestic enquiry, the petitioner itself was not. After the enquiry was completed, on the adjourned date of hearing of the interim relief application, the petitioner moved the Labour Court for vacating the ex parte order dated September 22, 1987. This request was made by them orally and in writing.
5. After hearing the parties leisurely, the Labour Court passed an Order on May 30, 1988, in which not only did it reiterate what it had directed on January 5, 1988, but went a step ahead and directed that the petitioner should file on record the copies of the fresh enquiry proceedings together with the findings therein and also supply copies of the enquiry proceedings to the first respondent for his action, and that the interim relief application would be disposed of on filing of the copy of the fresh enquiry proceedings, together with the findings, after hearing the parties afresh, if necessary. Aggrieved by this order, the petitioner moved the Industrial Court by its Revision Application (ULP) No. 50 of 1988. The Industrial Court dismissed the revision application on the ground that the interim relief application had not been disposed of and that the impugned order dated May 30, 1988, was an interlocutory order. It also held that there was full scope for the petitioner to raise all legal issues before the learned Judge of the Labour Court and that, if the total circumstances of the case were taken into account, no prejudice had been caused to any party, nor could it be said that the order was bad in law and, hence, there was no need to interfere at the interlocutory stage.
6. Mr. Singh, learned advocate for the petitioner, vehemently criticised the attitude adopted by the two Courts below. In the first place, he urged, the complaint itself was not maintainable, inasmuch as no action of discharge or dismissal had yet been taken against the first respondent on the date of the complaint. He submitted that it is now settled law by the decision of this Court in Divisional Commissioner, M. S. R. T. C., Wardha v. Presiding Officer, Industrial Court, Maharashtra, Nagpur 1989 MLJ 789, as reiterated in the judgment in Indian Hotels Co. Ltd. v. D. T. Pandey 1991 I CLR 324, that the jurisdiction to entertain a complaint under Item I of Schedule IV of the Act could arise only if the order of discharge or dismissal was complete and that, however wide the jurisdiction under the Act it did not extend to prevention of unfair labour practice which, on the date of the complaint, may be only in contemplation but not actually in existence. He also urged that any complaint with regard to such action, still in the womb, would be wholly untenable and non est, as held by this Court in Indian Hotels Company's case (supra). Having perused the two judgments, I agree with the view expressed therein and hold that I am bound by the ratio of these judgments.
7. Mr. Ganguli, learned advocate appearing for the first respondent, however, tried to dissuade me from following these two judgment for two reasons. First, he submitted that the two judgments were judgments delivered by single Judges. According to him, the issue is also pending before a Division Bench. Second, his contention is that, on principle also, I should disagree from the view expressed in the said two judgments for reasons which he canvassed by way of written submissions. Having heard Mr. Ganguli on this point and having had the benefit of reading the two judgments and the written submissions of Mr. Ganguli, I see no reason to differ from the views expressed in the judgment of Desai, J. in MSRTC's case (supra), as confirmed by he judgment of Dhanuka. J. in the Indian Hotels' case (supra), and as further reiterated by the judgment of Sambre, J. dated January 18, 1990 in Writ Petition No. 2956 of 1989. In the face of these authorities, with which I respectfully agree, the fact that the matter is pending before the Division Bench need not detain me. Though this petition was admitted on June 26, 1989 and Rule was made returnable immediately (within two weeks thereafter), the hearing of this petition had been adjourned on numerous occasions on the plea that the central issue in this petition as to jurisdiction of the Labour Court under Item I of Schedule IV of the Act was pending consideration before the Division Bench. In fact, the application for adjournment was renewed before me also by Mr. Ganguli, but I declined to grant an adjournment. The law, as it stands today, is the law laid down by the three judgments of this Court, which I have referred to hereinabove and with which I am in full agreement. Consequently, I do not feel any need or necessity for referring his writ petition to a larger Bench. I, therefore, reject the contention of Mr. Ganguli, and I hold that the Complaint (ULP) No. 364 of 1987 filed by the first respondent before the Labour Court, Thane, was itself not maintainable and that the Labour Court had no jurisdiction to entertain the same. In fact, as pointed out by my learned brother Dhanuka, J., the complaint ought to have been treated as honest. If this be so, the only order to make would, therefore, be to dismiss the complaint.
8. Before making that order, however, there is another aspect of the matter which has been pressed before me, which I shall proceed to consider.
9. Since the jurisdiction issue is yet pending before Division Bench, Mr. Singh invited me to consider and pronounce upon the legal merits of the impugned orders. He submitted that, even assuming that the view is ultimately taken by the Division Bench that the complaint of the first respondent could be entertained, the orders impugned in the petition are bad in law, without jurisdiction and need to be quashed and set aside. He urged that, assuming the complaint was tenable when it was filed, the cause of action, if any, vanished after the petitioner accepted the suggestion of the Court and implemented it by holding a fresh enquiry. The complaint was concerned with what had transpired up to the date of the complaint and subsequent events do not give jurisdiction to the Labour Court to pass an order for filing of the enquiry report, the finding therein and for granting or withholding permission to dismiss the first respondent on the result of the fresh enquiry. The jurisdiction to decide what action need to be taken against the employee is yet within the domain of legitimate managerial function, and, barring statutory inroad made thereinto, it is not open to the Court to stray into this preserve, in the submission of Mr. Singh. For this reason, he submits that the orders impugned in the petition are bad in law and deserve to be set aside.
10. Mr. Ganguli, of course, rejoined and contended that the Act was intended to 'prevent' an unfair labour practice and that the purpose of the Act, viz., that of prevention of unfair labour practice would be defeated if this view was adopted. Mr. Ganguli also liberally relied upon the doctrine of social justice as enshrined in Part III of the Constitution of India to buttress his arguments.
11. However wide the sweep of the jurisdiction of the Court to prevent unfair labour practices under the Act, however deep and pervasive the doctrine of social justice, the Labour Court and the Industrial Court are both creatures of statute, and have only so much jurisdiction as is conferred upon them thereunder. They cannot assume or usurp jurisdiction which does not directly flow form the statute under which they function. In the instant case, the jurisdiction to entertain the complaint and grant reliefs therein, interim or final, is conferred on the Labour Court by Section 30 of the Act. Sub-section (1) of the said section deals with final relief and sub-section (2) with that of interim relief. By the judgments of this Court in The Premier Automobiles Ltd. v. The Engineering Mazdoor Sabha and Ors. (1982-II-LLJ-73), and Kirloskar Oil Engines Ltd. v. V. B. Dharurkar & Ors. (1987-I-LLJ-366), the limits of the jurisdiction to issue an interim order under Section 30(2) of the Act, have been surveyed and delineated by this Court. The two judgments have, in unmistakable terms, laid down that the jurisdiction to issue an order comes into existence only upon a finding that there is an unfair labour practice. If it is a final order, there must be a final finding, and, if it is an interim order, there must atleast be a prima facie finding of unfair labour practice. This is the bare desideratum without which he Court can issue no order under Section 30. Recourse to the doctrine of social justice of Part III of the Constitution may not be necessary for this purpose. Apart from the jurisdictional limits indicated in these two judgments, the Labour Court must also realise that the general principles of law are still applicable to trials before it. unless the contrary is indicated by statue. One general principle of law is that an interim order is intended to ensure that the proceeding which is pending before the Court arising out of specific cause of action does not become frustrated by any act of a party, pending the hearing of the proceeding. This is really the reason d'etre for an interim order, be it under any statue. At the invitation of Mr. Ganguli, I have anxiously perused the provisions of sub-section (2) of Section 30 and I find nothing therein, which makes a radical departure from the aforesaid established general principle of law and the law laid down by the two judgments of our High Court in The Premier Automobiles (supra) and Kirloskar Oil Engines Ltd. (supra) The only departure, if any, discernible is that the Labour Court has been given power to pass even a mandatory order of withdrawing temporarily the practice complained of which is an issue in the proceeding, which though available to a Civil Court, is exercised, only in extremely rare cases.
12. Mr. Ganguli highlights the phraseology of sub-section (2) of Section 30, viz., "the Court may pass such interim order as it deems just and proper", and submits that the jurisdiction of the Courts under the Act is much wider than that vested in other Courts. Even if this arguments be true, I am afraid that a line will have to be drawn somewhere and the section has to be interpreted in consonance with well-known principles of law. I may reiterate the gentle, yet sagacious, caution sounded by the Supreme Court in D. C. M. Ltd., v. Their workmen, (1969-II-LLJ-755 at 767) "But in the branch of law relating to industrial relations the temptation to be crusaders instead of adjudicators must be firmly resisted."
The ring of these wise words must always echo in the ears of the Court exercising jurisdiction under Section 30(2) of the Act.
13. In my view, the provisions of sub-section (2) of Section 30, when read in consonance with the law laid down by this Court and the general principles of law applicable to all Courts, could only mean that the Court has jurisdiction to make such interim order as it deems just and proper in any proceedings before it under the Act, the dominant objective being to ensure that, by unilateral act of either party, the proceedings do not become frustrated or infructuous. If this dominant objective of an interim order is firmly kept in sight, there is little chance of stepping out of line. There is merit in the contention of Mr. Singh that the Labour Court fell into the error of failing to resist the temptation which it was cautioned against by the Supreme Court. In its zeal and enthusiasm, the Labour Court assumed that, even if the petitioner agreed to and abandoned the previous enquiry and held a fresh enquiry, it still retained jurisdiction, to superintend and scrutinize the fresh enquiry. Hence, the order directing the petitioner to produce the papers of the disposing of the interim relief application could be decided. In my judgment, this approach of the Labour Court was wholly erroneous, as it is neither in consonance with law, nor principle. The impugned Order of the Labour Court dated September 28, 1987, and the Order dated May 30, 1988, are, therefore, erroneous and without jurisdiction. The order of the Industrial Court confirming it amounts to failure to exercise the jurisdiction vested in it. The impugned orders of the two Courts below, therefore, deserve to be quashed and set aside, which I shall do.
14. Before concluding this judgment, I must refer to another aspect of the matter, to which my attention was drawn by Mr. Singh. That it is the practice of the Court exercising jurisdiction under the Act of passing, lightly, ex parte orders with serious consequences. Section 30 of the Act, in term, does not empower either the Industrial or Labour Court to make any ex parte order. However, the provision appended to sub-section (2) of Section 30 gives an indication that an interim order may, perhaps, be made even ex parte and that it may be reviewed on an application made by the aggrieved party. While I am not willing to accede to the argument that there is no power to grant an ex parte interim order, I have to point out that it is necessary to remember that an ex parte order should be the exception and not the rule, the Court should insist upon the party likely to be affected by the order being given notice, however short, If this is done as a matter of prudent practice, then the Court would be in a better position to appreciate the consequences of an ad interim order and decide whether an ad interim order needs to be made at all. It is possible that the party given notice might come before the Court, and ask for time to be able to show cause properly. Nothing prevents the Court from putting such party to terms and thereafter taking up the application for interim relief for hearing. Shooting first, and asking questions later, may be sound practice in the Wild West, but is hardly so in a Court of Law. The practice of issuing ad interim order, ex parte, as a rule, and then repeatedly postponding applications for vacating the order, is neither just, nor equitable. Instead of rendering justice, it causes serious prejudice, hardship and injustice to parties.
15. My attention was drawn to the judgment of the Division Bench of this Court in Kaushlyabhai w/o. Ganpat Jadhav & Ors. v. The State of Maharashtra & Ors. 1988 II CLR 9. There the Division Bench has deprecated the practice of issuing ex parte interim order without notice to the other side and observed : "It is well settled that, ordinarily, where any such interim order is made, the persons who are likely to be affected he heard, and, therefore, in such contingencies, the Court can always, without granting the interim relief, grant the rule on such interim application, and, after hearing both the parties, pass appropriate order in accordance with law." The Labour Courts and Industrial Courts would be well advised to pay attention to these observations of the Division Bench of this Court, and follow them in practice. The President of the Industrial Court, Maharashtra, in consultation with the Labour Law Practitioners' Association, may consider making suitable amendments to the Industrial Court Regulations and the Labour Courts (Practice and Procedure) Rules, so as to make the practice in the Courts conform to the procedure indicated by the observations of the Division Bench in Kaushalyabai's case (supra).
16. In the premises, the petition is allowed, and Rule made absolute. The impugned Orders of the Labour Court dated September 22, 1987 and May 30, 1988, are hereby quashed and set aside.
17. The Complaint (ULP) No. 364 of 1987 is hereby dismissed as untenable. There shall, however, be no order as to costs.