Bombay High Court
The National Sports Club Of India vs Mukesh Jadhav on 27 March, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
2023:BHC-OS:2078
25-WPL5622-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 5622 OF 2023
The National Sports Club of India
Having its registered office at Lala
Lajpatrai Marg, Worli, Mumbai 400 018 ...Petitioner
Versus
1 Mukesh Jadhav
Aged : 44 years, Room No.96 6/6,
G-Block, V. P. Nagar, L. L. Road, Worli,
Mumbai - 400 018.
2 Hitesh Dave
Age : 28 years, Advi Chawl, Shiv Bhole
Mitramandal, Hindustan Chowk,
Mulund (W), Mumbai - 400 082.
3 Ashish Ruke
Age : 33 years, Sainath Chawl
Committee, Datta Mandir Road,
Ambedkar Nagar, Appapada, Malad (W),
Mumbai - 400 097
4 Gitesh Shinde
Age : 32 years, Room No.924/7, H-Block
V. P. Nagar, Worli, Mumbai 400 018
...Respondents
Mr. S. S. Pakale, Senior Advocate, a/w P. N. Salgaonkar, Pratik
Salgaonka, i/b Salgaonkar & Co., for the Petitioner.
Ms. Jane Cox, i/b Ghanashyam Thombare, for the
Respondents.
CORAM: N. J. JAMADAR, J.
DATED : 27th MARCH, 2023
JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties heard finally at the stage of admission.
1/9::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 :::
25-WPL5622-2023.DOC
2. By this petition under Article 227 of the Constitution of India the petitioner assails the legality, propriety and correctness of the order dated 20th February, 2023 passed by the learned Member, Industrial Court, Mumbai, on an application (Exhibit-C-5) for impleading Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC), a recognized union, as a party respondent to Complaint (ULP) No.272 of 2022, whereby and whereunder the said application preferred by the petitioner came to be rejected.
3. Shorn of superfluities, the facts are:
(a) The petitioner is a Club, and Society registered under Maharashtra Co-operative Societies Act, 1960 ("the Act, 1960").
The petitioner employs about 386 employees. The Maharashtra Rajya Kamgar Sangh is the recognized Union of the employees of the petitioner. The petitioner entered into a settlement with the recognized Union on 26th November, 2018. Pursuant thereto 37 temporary workmen were made permanent in the services of the petitioner club with effect from 19th February, 2019. After more than three years, the petitioner alleges, 13 out of the aforesaid 37 employees filed a complaint alleging unfair labour practices under Items 5 and 9 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour 2/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 ::: 25-WPL5622-2023.DOC Practices Act, 1971 ("the Act, 1971"). It was alleged, inter alia, that the petitioner has signed three settlements with the recognized Union. The service conditions of the newly made permanent workers are far less favourable than the settlements signed with the workers made permanent in the previous lot.
(b) The petitioner preferred an application for impleading Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC) as a party respondent to the said complaint asserting, inter alia, that the complainants were made permanent pursuant to the settlements arrived at by and between the petitioner and the recognized Union. The complainants were challenging the terms of the settlement under which they were made permanent. It was, therefore, necessary to implead the recognized Union as it was a necessary party.
(c) The respondent - employees resisted the application contending that the recognized Union is not an interested party as the recognized Union signed the settlements with the petitioner, which are against the settled principles of law.
(d) By the impugned order the learned Member, Industrial Court was persuaded to reject the application primarily on the ground that there was no allegation against the recognized Union, and that the presence of the recognized Union 3/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 ::: 25-WPL5622-2023.DOC was not necessary for a complete and effectual decision of the complaint.
4. Being aggrieved the petitioner has invoked the writ jurisdiction of this Court.
5. I have heard Mr. Pakale, the learned Senior Advocate for the petitioner, and Ms. Cox, the learned Counsel for the respondent. With the assistance of the learned Counsel for the parties, I have perused the material on record including the averments in the Complaint (ULP) No.272 of 2022 and the impugned order.
6. Mr. Pakale, the learned Senior Advocate, would urge that the finding of the learned Member, Industrial Court, that there are no allegations against the recognized Trade Union and therefore the recognized Trade Union was not a necessary party is erroneous. Taking the Court through the averments in the Complaint (ULP) No.272 of 2022 and the reply filed in opposition to the application for impleadment, Mr. Pakale strenuously submitted that the presence of the recognized Union is indispensable for a complete and effectual adjudication of the complaint.
7. Ms. Cox, the learned Counsel for the respondent, countered the submissions on behalf of the petitioner. It was 4/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 ::: 25-WPL5622-2023.DOC urged that the settlements between the petitioner and the recognized Trade Union are the matters of record. The complaint was, inter alia, of unfair labour practice by showing favouritism and partiality to one set of workers manifest in the settlements entered into by the recognized Trade Union. In the circumstances, the presence of the recognized Union was wholly unwarranted. Ms. Cox further submitted that the impleadment of the recognized Trade Union is sought with a design to delay the disposal of the proceedings.
8. I have given anxious consideration to the rival submissions. There is not much controversy over the foundational facts. Indisputably, Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC) is a recognized Trade Union of the employees employed at the petitioner's establishment. Incontrovertibly, the recognized Union has entered into settlements with the petitioner. Indubitably, the complaints in Complaint (ULP) No.272 of 2022 were extended permanency on the basis of the settlement arrived at by and between the petitioner and the recognized Trade Union. What the complainants essentially allege is the disparity in the dispensation extended to them.
5/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 :::
25-WPL5622-2023.DOC
9. In the backdrop of the aforesaid uncontroverted facts, whether the Industrial Court was justified in declining to implead the recognized Union as a party respondent to the application? Undoubtedly, addition of a party is not a matter of initial jurisdiction but one of judicious discretion. A necessary party is one, in the absence of whom, no effective order can be passed and whose presence is necessary for a complete and effectual adjudication of the dispute. When a recognized Union is sought to be impleaded, in a dispute involving the employees who were/are its members and the employer, considerations slightly different than the general principles which govern the addition of a party come into play. A recognized Trade Union carries certain privileges. A few category of disputes or for that matter complaints of unfair labour practices, can only be raised by a recognized Union.
10. In the case at hand, it is indisputable that the rights and benefits, in respect of which unfair labour practices are alleged, emanate from the settlements entered into by the recognized Union with the petitioner. The tenor of the complaint is that the settlements under which permanency benefits were extended to the complainants were less favourable than the co-employees, who were granted permanency benefits in the past. In essence, 6/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 ::: 25-WPL5622-2023.DOC the legality and validity of the settlements entered into by the recognized Trade Union with the petitioner is sought to be assailed.
11. If the aforesaid context of the dispute is kept in view, I find it difficult to subscribe to the view taken by the learned Member, Industrial Court. It is not necessary that there must be allegation of mala fide against the recognized Union in the execution of the settlements. If the tenor of the allegations, by and large, implies that the recognized Union did not execute the settlement in the best interest of the employees and on that count the legality and validity of the settlement is questioned and the employer is charged with indulging in unfair labour practices, the recognized Union deserves an opportunity of hearing. In any event, the question of unfair labour practices which is rooted in the alleged favouritism on account of the execution of the settlements can not be effectually and completely decided without commenting upon the propriety of entering into such settlements.
12. In my view, the learned Member, Industrial Court, was not justified in distinguishing the judgment of this Court in the case of Maharashtra General Kamgar Union vs. Abott Laboratories (I) 7/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 ::: 25-WPL5622-2023.DOC Ltd. and Ors.1. In the said case, albeit in a dispute between a recognized and unrecognized Union, this Court had inter alia, observed that where allegations have been made against a party and the possibility of those allegations being inquired into and the finding thereon being made the foundation of any order that may be passed, that party must necessarily be heard. That party cannot be heard unless it is made a party to the proceedings.
13. If there was any doubt as to whether the complainants attributed impropriety, in the least, to the recognized Union that is set at rest by the affidavit-in-reply on behalf of the respondents wherein it was categorically asserted that the recognized Union signed the settlements which were against the principles of law.
14. I am, therefore, impelled to hold that the Industrial Court did not properly exercise the discretion in rejecting the application for impleadment.
15. Ms. Cox submitted that the impleadment of the recognized Union may unnecessarily delay the disposal of the complaint and the interim application preferred therein. This 1 1986 II CLR 468.
8/9::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 :::
25-WPL5622-2023.DOC apprehension can be taken care of by issuing appropriate directions.
16. Hence, the following order:
:ORDER:
(i) Petition stands allowed.
(ii) The impugned order stands quashed and set aside.
(iii) Application (Exhibit-C5) stands allowed.
(iv) The respondent - complainant shall implead Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC) as a party respondent to the application within a period of one week from the date of uploading of this order.
(v) Notice be served on the Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC) within a week of its
impleadment.
(vi) The Union shall file its reply/written statement within two weeks of the service of the notice,
(vii) The learned Member, Industrial Court, is requested to decide the application for interim relief as expeditiously as possible.
Rule made absolute to the aforesaid extent. No order as to costs.
[N. J. JAMADAR, J.] 9/9 ::: Uploaded on - 29/03/2023 ::: Downloaded on - 30/03/2023 13:53:44 :::