Bombay High Court
M/S.Sanket Food Products Pvt.Ltd vs Prabhakar Asaram Bhalerao on 18 December, 2013
Author: Ravindra V.Ghuge
Bench: Ravindra V.Ghuge
( 1 ) Writ Petition No.8482 of 2009
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8482 OF 2009
M/s.Sanket Food Products Pvt.Ltd.,
Plot No.A-9/26, Additional MIDC Area,
Jalna, through : The Manager PETITIONER
VERSUS
1.
Prabhakar Asaram Bhalerao,
R/o.Vidyut Colony, Juna Jalna,
Tq. And Dist. Jalna,
2. Shantaram Rambhaji More,
Shankar Nagar, Jalna,
Tq. And Dist. Jalna,
3. Subhash Karbhani Shelke,
R/o. Post : Padli, Tq.Badnapur,
Dist. Jalna,
4. Nandu Bhimrao Jagdhane,
R/o. Post : Nusan Wasahat, Juna Jalna,
Tal. And Dist. Jalna,
5. Dilip Sheshrao Jadhav,
R/o.Post : Nusan Wasahat, Juna Jalna,
Tal. And Dist. Jalna,
6. Punjaram Pundalik Jarhad,
R/o. Post : Badnapur, Tq.Badnapur,
Dist. Jalna,
7. Ashok Ramrao Dabhade,
R/o. Post : Bopteshwar,
Tq.Badnapur, Dist.Jalna,
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( 2 ) Writ Petition No.8482 of 2009
8. Shivaji Panditrao Deshmukh,
R/o.Bhoipura Shani Mandir, Juna Jalna,
Tq. And Dist. Jalna,
9. Vimala Dilip Jadhav,
R/o. Post : Nusan Wasahat, Juna Jalna,
Tq. And Dist. Jalna,
10. Kamalabai Madhukar Mokde,
R/o.Indira Nagar, June Jalna,
Tq and Dist. Jalna. RESPONDENTS
Mr.T.K.Prabhakaran, Advocate for petitioner.
Mr.H.V.Patil, Advocate for respondent Nos. 1 to 10.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 18/12/2013
JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard with consent of learned Advocates for the respective parties.
2. By this petition, the petitioner seeks to challenge the judgment and orders dated 21/05/2008 and 10/09/2009 delivered by the Labour Court and Industrial Court in Complaint (ULP) No.80 of 2003 and Revision (ULP) No.12 of 2009, respectively.
3. Contention is that, a common closure notice dated 19/01/2013 ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 3 ) Writ Petition No.8482 of 2009 and individual closure notices of the even date resulting in discharge of 23 workmen as per the Industrial Disputes Act, 1947, was challenged before the Labour Court by filing complaint (U.L.P.) No. 80/2003 by the respondents. Item 1(a) (b) (d) and (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Hereinafter referred to as State Act) were invoked. Thrust of the complaint was that the Law of Retrenchment was not complied with by the petitioner and respondent workmen were terminated from employment by order dated 19/01/2003 under the pretext of a closure. The factum of closure was denied and it was contended by the respondents that the factory still continues with its production or has indulged in producing allied products.
4. The petitioner had resisted the complaint by filing its written statement. Objection to the maintainability of the complaint was specifically raised in the written statement itself in para No. 9 which is at page No. 67 of the petition paper book. It reads thus :
"After the closure of the Factory, there is no industry in operation where the complainant could be reinstated. In ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 4 ) Writ Petition No.8482 of 2009 absence of any industry qua the complainants, the instant complaint is not maintainable. As such the complaint is to be dismissed in limine."
An objection that a case of closure cannot be gone into by the Labour Court under Item 1 of Schedule IV, does not appear to have been specifically raised in the written statement of the petitioner.
5. In Ground No. 9(a) on page No. 6 of the petition memo, the petitioner contends as under :-
"The Inferior Courts missed the point of law which was raised before them, that closure cannot be a subject matter of challenge under Item 1 of Schedule IV of the MRTU & PULP Act, 1971. The cause of action of closure is beyond the scope of the MRTU and PULP Act, and is not justiciable within the jurisdiction of the Inferior Courts created under the said Act."
6. The petitioner points out that issues were framed by the Labour Court, Jalna on 06/09/2003 which are at page No. 69 of the petition paper book and which read thus :
I. Whether are complainants prove that the respondent has engaged in and has been engaging in unfair labour practice by ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 5 ) Writ Petition No.8482 of 2009 terminating the services of them w.e.f. 19.1.2003 ? II. Whether the order of termination dated 19/01/2003 is shockingly disproportionate and illegal ? III. Whether the complainants further prove that the respondents has violated the provisions of section 25-F, 25-G and 25-H of the I.D. Act, 1947 ?
IV. Whether the complainants are entitled for reinstatement in service with continuity and full back wages ?
V. What order?
7. It is therefore contended that the issue as regards maintainability of the complaint in light of its objection in para No. 9 of the written statement was neither framed nor was that objection dealt with in the impugned judgment. So also, issue No. 2 referred above which pertains to the proportionality of punishment, was answered in the affirmative when it was nobody's case that the workers have been awarded a shockingly disproportionate punishment.
8. The petitioner submits that during the pendency of the complaint, 13 complainants out of the 23 have withdrawn from the proceedings and the 10 respondents in this petition are the ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 6 ) Writ Petition No.8482 of 2009 remaining complainants. The Labour Court has resorted to a roving and fishing inquiry by collecting a report from the Government Labour Officer (GLO) and by appointing a Court Commissioner, who visited only the Government Labour Office and submitted his report.
Question is being raised as to how far could the Labour Court rely on the report of the Government Labour Officer in the adjudication of a complaint in as much as whether the Labour Court had jurisdiction to inquire into the factum of closure.
9. The petitioner conceded that the evidence of the respondent workers remained un-controverted due to the laxity on the part of the petitioner. Neither, evidence was led nor arguments advanced on behalf of the petitioner. However, documents like the closure notices, payment of compensation in accordance with the scheme of the Industrial Disputes Act, 1947 and the stoppage of electricity consumption evidenced from the monthly bills were placed before the Court. According to the petitioner, the Labour Court has exercised jurisdiction not vested in it by Law and has resorted to investigating the factum of closure.
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10. The petitioner also contends that by the impugned judgment, the Labour Court has arrived at a conclusion that the closure is unbelievable and discharge of the respondent workmen needs to be held as invalid termination. An astonishing direction of reinstatement of respondent workers with continuity of service and 50% back wages amounting to resumption of business has been issued by the Labour Court.
11. The petitioner states that these errors have multiplied owing to the judgment of the Industrial Court dated 10/09/2009 delivered in Revision U.L.P.No. 12/2009 filed by the petitioner to challenge the judgment of the Labour Court. The error committed by the Labour Court was not corrected by the Industrial Court which has mechanically dismissed the revision petition and upheld the conclusions of the Labour Court.
12. The issues of maintainability of the complaint and jurisdiction of the Labour Court were also not gone into in as much as the Industrial Court on its own volition invoked section 25(O) under Chapter V (B) of the Industrial Disputes Act, 1947 to conclude that ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 8 ) Writ Petition No.8482 of 2009 the Law of Closure was not followed by the petitioner. It is reiterated that it was not the case of the respondents that Chapter V (B) of the I.D.Act was applicable in the fact situation.
13. Learned Advocate Mr.H.V.Patil for the respondents has strenuously and strongly supported the impugned judgments.
According to him, the case of the respondents squarely fell under Item 1(b) and 1(d) of Schedule IV of the State Act and as such discharge of the employees in the colourable exercise of the employer's rights and for patently false reasons had been proved on the strength of oral and documentary evidence. He further submits that the Court Commissioner's Report coupled with the Government Labour Officer's Report clearly indicates that the closure is an eye wash and not genuine.
14. Packets of Pansupari and Gutkha, showing their manufacturing date, which happens to be a date after the closure, was placed before the Labour Court to prove that the manufacturing activity was continued in the said factory of the petitioner. The false plea of the petitioner was sufficiently exposed before the Labour Court.
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15. An advertisement in a daily newspaper calling for applications for appointment of Salesman by the same petitioner factory, as contended by the respondents, was another clinching piece of evidence.
16. According to him, all these aspects were duly considered and properly appreciated by both the Lower Courts and the impugned judgments do not require any interference as neither an illegality nor any perversity can be made out from the said judgments. A false case of closure can be gone into by the Labour Court U/I 1(b & d) of Schedule IV.
17. He frankly stated that the issue as regards jurisdiction of the Labour Court to deal with cases of closure and maintainability of the complaint though raised by the petitioner, was not gone into by the Labour Court either by framing an issue or considering those aspects even in the absence of an issue. However, he added that the reasons set out in the impugned judgment are an answer even to the said objection.
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18. With the assistance of the learned Advocates, I have gone through the petition paper book. It clearly emerges that an objection as regards the maintainability of the complaint was raised by the petitioner which has not been dealt with by the Labour Court. This aspect has also been lost sight of by the Industrial Court.
19. In my considered view, in the face of an objection pertaining to its jurisdiction, the Labour Court was bound to decide that issue.
Having not done so, the impugned judgment would rest on an assumption that the Labour Court has exercised jurisdiction vested in it by Law.
20. Jurisdiction can not be acquired either on assumptions or on presumptions. In view of a specific objection raised, it was incumbent upon the Labour Court to deal with the said issue so as to arrive at a conclusion that it had jurisdiction to entertain the complaint. If the issue was answered to establish jurisdiction, the Labour Court would have been justified in arriving at its conclusions like those found in the impugned judgment. Having not dealt with the said issue, the impugned judgment of the Labour Court deserves ::: Downloaded on - 23/12/2013 20:36:06 ::: ( 11 ) Writ Petition No.8482 of 2009 to be set aside. Needless to state, on the same premise, the judgment of the Industrial Court is set aside.
21. In the light of the above, the impugned judgments of the Labour Court dated 21/05/2008 in complaint U.L.P. 80/2003 and the judgment of the Industrial Court dated 10/09/2009 in Revision U.L.P.No. 12/2009 are quashed and set aside.
22. Ends of justice would be met with the following directions :
(a) Complaint U.L.P.No. 80/2003 is relegated back to the Jalna Labour Court.
(b) An issue as regards the maintainability of the complaint in light of the specific pleading set out by the petitioner in para No. 9 of the written statement be framed. All other issues be maintained unless any party desires addition of issues.
(c) The issue as regards jurisdiction be dealt with by the Labour Court along with the other issues.
(d) both the parties are at liberty to lead oral and documentary evidence in relation to the newly framed issue in as much as the respondent herein is at liberty to file a counter say to the preliminary objections in order to place its pleadings on record.
(e) Oral and documentary evidence already adduced before the Court, may be considered and utilized by the Labour Court.::: Downloaded on - 23/12/2013 20:36:06 :::
( 12 ) Writ Petition No.8482 of 2009
(f) Liberty to the petitioner to cross examine the respondent's witnesses.
(g) The petitioner is also at liberty to lead its oral and documentary evidence on all issues and the respondent shall have the liberty to cross-examine the said witnesses.
(h) Both the parties shall fully co-operate with the Labour Court, Jalna in the expeditious hearing and disposal of complaint (ULP) No.80/2003 so as to enable the Labour Court to decide the complaint as expeditiously as possible and preferably within a period of 9 months.
(i) R & P be sent back to the Labour Court, Jalna forthwith.
(j) Original complainant shall deposit process fees within a period of four weeks from today in the Labour Court.
(k) The period of nine months for deciding the complaint shall be from the date of issuance of notice.
(l) The Labour Court shall decide the complaint afresh on its own merits without being influenced by the observations made in this judgment.
23. The writ petition is partly allowed. Rule is made absolute in the above terms. No order as to costs.
( RAVINDRA V.GHUGE, J.) khs/Dec.2013/wp8482-09 ::: Downloaded on - 23/12/2013 20:36:06 :::