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(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment."

A mere look at Item 1 of Schedule IV shows that it would be a general unfair labour practice on the part of the employer to discharge or dismiss employees on any of the grounds mentioned in clauses (a) to (g) of this Item. On this aspect there is no dispute between the parties. The moot question is whether the sweep of the item can cover any of the alleged general unfair labour practices on the part of the employer, before the employer concerned actually discharges or dismisses the employee on any of the grounds enumerated in clauses (a) to (g). Let us take an illustration to see how this item operates. If an employer discharges or dismisses an employee by way of victimisation it would be a complete unfair labour practice on his part as contemplated by clause (a) of Item 1 of Schedule IV. As we have seen above, the Act is enacted with a view to prevent such unfair labour practice. Therefore, the question squarely arises as to how such an unfair labour practice of discharge or dismissal of an employee by way of victimisation can be prevented. If it is to be prevented, it has to be prevented from taking effect or getting completed. Therefore, the intervention of the Labour Court can be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by way of victimisation has not resulted into its culmination but it is in pipeline or process. Under the standing orders governing the concerned industries, before an employee can be discharged or dismissed on the ground of any misconduct, departmental enquiry has to be held. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a chargesheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. It can then be said that the process of alleged unfair labour practice on the part of the employer to discharge or dismiss an employee on ground (a) mentioned in Item 1 of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee can make out a strong prime facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In his connection, it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item 1 of Schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on such grounds with a view to discharge or dismiss an employee is considered by the Act to be an unfair labour practice on the part of the employer.

Section 27 lays down as under:-

"No employer or union and no employees shall engage in any unfair labour practice."

Thus there is total embargo on the unions of the employees as well as the employees and also on the employer on engaging in any unfair labour practice. Once it is found that Item 1 of Schedule IV covers general unfair labour practices on the part of the employer consisting of not only final discharge or dismissal of employee on any of the grounds mentioned in Item 1 but also any action taken by initiating the process towards such ultimate discharge or dismissal of the employee, Section 27 of the Maharashtra Act gets attracted even at a prior stage when such unfair labour practice is sought to be resorted to by the employer by engaging himself in such an unfair labour practice. In other words, to take an illustration, if it is alleged in a given case that the employer seeks to discharge or dismiss an employee by way or dismiss an employee by way of victimisation and for that purpose he has initiated the process of departmental enquiry by issuing the chargesheet to the employee concerned, the employee concerned can legitimately urge that the employer is guilty of such unfair labour practice in which he seeks to engage himself and, therefore, the prohibition enshrined in Section 27 gets squarely attracted against him. It is not as if that in such a case the employer can be said to have engaged himself in any unfair labour practice of discharging or dismissing the employee by way of victimisation only after the ultimate stage is reached and the order of discharge or dismissal sees the light of the day. The prohibition against engagement in any unfair labour practice as mentioned in Section 27 will cover all stages from the beginning to the end, when the process which is initiated by the concerned employer or the union in connection with the alleged unfair labour practice starts and ultimately terminates.

As per Section 28(1) any complaint regarding the general unfair labour practice on the part of the employer to discharge or dismiss employee on the grounds mentioned in Item 1 of Schedule IV can be filed before the Labour Court. Such a complaint can cover both types of grievances against the employer; (1) that he has engaged in any unfair labour practice and (2) or he is engaging in any unfair labour practice. The learned counsel for the appellant submitted that though the Act is enacted with a view to prevent such unfair labour practices, there is no whisper about such prevention in any of the operative sections of the Act. This submission cannot be accepted in the light of the express language of section 28(1) and the types of complaints contemplated by it, as aforesaid. As per Section 28(1) of the Maharashtra Act an employee can file a complaint against the employer on the ground that the employer has engaged in unfair labour practice to discharge or dismiss employee by way of victimisation etc. For the purpose of illustration, we may take clause 1 of Item 1 of Schedule IV to highlight the scheme of this section. If an employee files a complaint before the Labour Court alleging that the employer has engaged in unfair labour practice to dismiss or discharge him by way of victimisation, it would contemplate a completed act, namely, an order of discharge or dismissal that might have been passed, because the term "has engaged"

represents a present perfect tense, meaning thereby an action which has got completed in presenting. The learned counsel for the appellant could have submitted with emphasis that the complaint could be filed on the ground of alleged unfair labour practice on the part of employer to discharge or dismiss an employee by way of victimisation only after the action was completed and the discharge or dismissal was effected on that ground if Section 28(1) would have contained only the words "has engaged". But the legislature has conferred jurisdiction on the Labour Court to entertain the complaints also on the additional ground that the employer is engaged in any unfair labour practice. This clearly indicates a present continuous action as it reflects a present continuous tense. That would include a complaint regarding the employer, who at present is engaging in the alleged unfair labour practice by way of victimisation. That would indicate actions which are contemplated and in pipeline but which are still not finally completed. If the learned counsel for the appellant is right that only the final act of discharge or dismissal can be covered by the sweep of Section 28(1), then the terminology used by the Legislation "or is engaging in any unfair labour practice"