Bombay High Court
Rashtriya Mill Mazdoor Sangh And Ors. vs K.B. Wagh, Presiding Officer, 11Th ... on 30 September, 1993
Equivalent citations: [1994(68)FLR260], (1995)ILLJ629BOM
JUDGMENT A.V. Savant, J.
1. This is a petition by the Trade Union and its President seeking to challenge the concurrent findings recorded at the interlocutory stage in a complaint pending under the M.R.T.U. & P.U.L.P. Act, 1971. Under the impugned order dated September 6, 1993 passed by the Industrial Court while dismissing the revision application of the petitioners, the Labour Court has been directed to expedite the hearing of the matter so as to complete it within six months.
2. Respondent No. 3 - workman has filed the complaint which is pending. He was working with the first petitioner-Union which claims to represent the Cotton Textile Industry in the city of Bombay. It has a membership of about 1,50,000, a board of 917 representatives; a managing committee of 64 with a President who is petitioner No. 2 and a General Secretary. The first petitioner Union employs about 165 employees. It runs a printing press and a canteen. On May 24, 1993 about 47 out of 64 members of the Managing Committee addressed a representation to the second petitioner - President pointing out their grievances against the present General Secretary, Shankarrao Jadhav. They mentioned the plight of the textile workmen in view of the issues pending before the B.I.F.R. They referred to the National Textile Corporation and problems faced by the Industry and the need to take certain steps. They, therefore, suggested that a more experienced person like Bhai Bhosale should be appointed as a General Secretary in place of Shankarrao Jadhav. The third respondent workman is supposed to have presented this representation to the second petitioner-President of the first petitioner - Trade Union. Prompt came the order terminating the services of the third respondent with immediate effect from the next date namely May 25, 1993 giving him one month's salary. There is no reason for the sudden termination. There is no enquiry. There is no charge- sheet and the petitioners preferred to offer the third respondent one month's salary to get rid of him forthwith. This order dated May 24, 1993 has been challenged which is the subject matter of the pending complaint under the M.R.T.U. & P.U.L.P. Act.
3. In his complaint, the third respondent has alleged that the petitioners have indulged in unfair labour practice within the meaning of item 1 of Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971 and has also prayed for interim relief. Parties filed their pleadings on the question of interim relief and the Labour Court came to the prima facie conclusion that the petitioners ought to have compiled with the provisions of Sections 25-F and 25-G of the Industrial Disputes Act. No seniority list was placed before the Court to ascertain the true facts. Prima facie, it appears that the petitioners were annoyed with the representation received by them on May 24, 1993 through the third respondent. Reliance was placed on the ratio of the Supreme Court decision in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. reported in (1978-I-LLJ-349) to record a prima facie finding that the first petitioner Union was an industry. A reference was also made to a Division Bench decision of this Court in the case of Vasudeo Ambre v. State of Maharashtra and Anr. reported in (1988-1- LLJ-464). That was a case of the Mill Mazdoor Sabha which represented the Silk Textile Industry in the city of Bombay whereas the first petitioner in the present petition represents the Cotton Textile Industry in the city of Bombay. The Labour Court also referred to the Supreme Court decision in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. and recorded a prima facie finding in favour of the workman. In the result the application for interim relief was allowed and the petitioners were directed to take the workman on his original post and pay him full wages till the final disposal of the complaint. This interim order was passed on July 27, 1993.
4. The petitioners carried the matter in revision under Section 44 of the M.R.T.U. & P.U.L.P. Act. The Revisional Court also considered several aspects such as the nature of activities carried on by the first petitioner-Union through number of its employees and came to the conclusion that, prima facie, it was clear that the first petitioner was an industry. Relying upon the observations of the Division Bench in Vasudeo Ambre's case, it was held that no rule of law was pointed out that a Trade Union cannot be an industry. A reference was made to the criteria laid down by the Supreme Court in the leading case of Bangalore Water Supply and Sewerage Board (supra). The question of balance of convenience was considered and it was held that the balance clearly lay in favour of the third respondent-workman. In the result, the petitioners' revision application was dismissed and the Labour Court was directed to expedite the hearing of the complaint and dispose of the same within six months.
5. It is against these concurrent findings that the petitioners have approached this Court in a writ petition under Article 226 of the Constitution. I have heard both the learned Counsel at some length, viz. Miss Buch for the petitioners and Mr. Gokhale for the third respondent. Miss Buch contended that, at this stage, it was not possible to record even a prima facie finding that the first petitioner was an industry within the meaning of Clause 2(j) of the Industrial Disputes Act, 1947. Her contention is that an interim order in the nature of a mandatory order cannot be passed when the issue of jurisdiction was raised. She also wanted to rely upon some orders passed by the Labour Court in the case of first petitioner-Union holding it not to be an industry but she fairly pointed out that the said decisions were challenged in this court in writ petitions which have been admitted.
6. As against this Mr. Gokhale appearing for third respondent workman pointed out that having regard to the ratio of the Supreme Court decision in Bangalore Water Supply and Sewerage case the first petitioner has clearly all the attributes of an industry and must be treated as such. He pointed out the nature of the activities conducted by the first petitioner, the number of employees and relying upon the observations of the Supreme Court in paras 103-130 at page and particularly the tests laid down in Para 131 at pages 404-405 of (1978-I-LLJ-349) he contended that the first petitioner must be held to be an industry. He also placed reliance upon the Division Bench decision (1988-I-LL.T-464), and stated that there is hardly any difference between the nature of the activities carried on by the Mill Mazdoor Sabha which was the trade union concerned in Vasudeo Ambre's case and the first petitioner Rashtriya Mill Mazdoor Sangh. The only difference is that Mill Mazdoor Sabha is concerned with the silk textile industry in Bombay whereas Rashtriya Mill Mazdoor Sangh is concerned with the cotton textile industry in the city of Bombay.
7. On the question of interim relief, Mr. Gokhale contends that the third respondent has made out a prima facie case on merits and having regard to the observations of the Supreme Court in paras 13 and 14 of the judgment in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. (supra), the workman was entitled to an interim relief. Balance of convenience clearly lay in his favour in granting the interim order. Counsel also invited my attention to the decision of another Division Bench in the case of Ashok Vishnu Rate and Ors. v. M.R. Bhope, Judge Labour Court, Bombay, reported in 1992 I CLR 531. On the question of grant of interim relief even pending the consideration of the preliminary issue of jurisdiction, Counsel invited my attention to (he caution sounded by the Supreme Court in the case of D.P. Maheshwari v. Delhi Administration and Ors. reported in (1983-11- LLJ-425). Reliance was placed on the observations in the opening para which are as under: (pp 426-427):
"It was just the other day that we were he-moaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the mean-while. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues".
8. Mr. Gokhale also sought to rely upon the observations of this Court in the case of Kranti Mohan Guruprasad Mehra and Anr. v. Fatehchand Vasuram Behal, where analysing the scheme of Section 9-A of the Code of Civil Procedure as applicable in the State of Maharashtra, this Court held that even during the interim period till the adjudication of the preliminary issue, the Court is empowered to grant relief purely on interim basis. Observations to this effect are to be found in para 14 of the judgment at page 269 of the report. Finally, counsel contended that having regard to the observations of the Supreme Court in the case of Laxmi Video Theatres and Ors. v. State of Haryana and Ors. reported in Judgments Today 1993 (4) SC 218, the word "industry" must receive a wider meaning. Having regard to modern progressive society he contended that a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept may attract with the march of time and with the revolutionary changes brought about in social, economic, political, scientific and other fields of human activity.
9. At this interim stage, I am inclined to accept the submission of Mr. Gokhale. There is a concurrent finding of fact recorded by the two authorities that the first petitioner is an industry. The manner in which the order of termination has been issued appears to be rather unusual and extraordinary. The background of the representation submitted by 47 out of 64 members of the Managing Committee through the third respondent cannot be overlooked or brushed aside. Prima facie, the order of termination does not appear to be innocuous and one has to lift the veil and find out the reason for issuance of the said order in such extreme and ugly haste. However, since I am hearing the petition against interim orders which are concurrent, I am not expressing any final opinion on the merits of the contentions. The parties are yet to lead evidence at the trial. Suffice it to say that having regard to the law laid down by the Supreme Court in the case of Bangalore Water Supply and Sewerage (supra) as also the law laid down by the Division Bench of this court in Vasudeo Ambre's case, I find no reason to interfere with the interim orders at this stage. Needless to say that balance of convenience is overwhelmingly in favour of the third respondent. In the circumstances, the petition is summarily dismissed. The Trial Court is directed to hear and dispose of the complaint within six months from today.
10. Miss Buch applies for stay of the operation of this order. Mr. Gokhale opposes. Prayer for stay is rejected.