1 WP6837.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6837 OF 2015
PETITIONERS : 1] Vandana Rajesh Satpude,
Aged about 38 years, Occupation : Nil
2] Varsha Sanjay Chawhan,
Aged about 42 years, Occupation : Nil
3] Alka Krushnarao Randive,
Aged about 35 years, Occupation : Nil
4] Sharmila Shivram Pathade,
Aged about 38 years, Occupation : Nil
5] Nisha Ramesh Singh Chawhan,
Aged about 26 years, Occupation : Nil
6] Priti Parag Bhelawe,
Aged about 32 years, Occupation : Nil
7] Varsha Mahadev Atram,
Aged about 31 years, Occupation : Nil
8] Rupali Laxman Jamgade,
Aged about 27 years, Occupation : Nil
9] Usha Sanjay Mendhe,
Aged about 39 years, Occupation : Nil
10] Vandana Sunil Masram
Aged about 45 years, Occupation : Nil
11] Vaishali Suresh Burande,
Aged about 25 years, Occupation : Nil
12] Megha Marotrao Sherkar,
Aged about 37 years, Occupation : Nil
13] Anita Wamanrao Thakre,
Aged about 24 years, Occupation : Nil
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14] Sunita Ramawatar Pal,
Aged about 42 years, Occupation : Nil
15] Priya Pradeep Pande,
Aged about 24 years, Occupation : Nil
16] Shital Laxmanji Dhawale,
Aged about 23 years, Occupation : Nil,
17] Sonu Liladhar Ukey,
Aged about 30 years, Occupation : Nil
18] Rakhi Daddaji Giri,
Aged about 32 years, Occupation : Nil
19] Amrapali Ramesh Bele,
Aged about 34 years, Occupation : Nil
20] Prital Rambhau Atkari,
Aged about 22 years, Occupation : Nil
21] Surbhi Subhash Charpe,
Aged about 21 years, Occupation : Nil
22] Lata Anandrao Bandebuche,
Aged about 23 years, Occupation : Nil
23] Karishma Gautam Humane,
Aged about 21 years, Occupation : Nil
Petitioner Nos.1 to 23 are terminated from service.
All C/o Vandana Ramesh Satpude,
Plot No.37, Telephone Nagar, Narsala Road,
Umred Road, District Nagpur - 440 034.
VERSUS
RESPONDENT : M/s Matru Sewa Sangh,
Sitabuldi, Nagpur, through its Secretary.
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Mr. S. D. Thakur, Advocate for the petitioners.
Mr. V. P. Marpakwar, Advocate for the respondent.
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CORAM : PRASANNA B. VARALE, J.
Judgment Reserved on : December 15, 2016.
Judgment Pronounced on : JUNE 05, 2017
JUDGMENT
By this petition, the petitioners challenge the order passed by the learned Member, Industrial Court, Nagpur, dated 29.09.2015 in Complaint ULPN Nos. 154 to 177 of 2013, thereby declining to entertain the complaints filed by them, observing that Industrial Court has no jurisdiction to try and decide the complaints as not maintainable.
2] It would be useful to refer to the facts, in brief, giving rise to the present petition :
Petitioner No.1 - Vandana Satpute had filed complaint ULPN No.154/2015 before the Industrial Court, Maharashtra, Nagpur Bench, Nagpur under Sections 5, 28 and 30 and Under Item Nos.6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The other petitioners had also filed the identical complaints before the Industrial Court, Nagpur. It was the case of the petitioners that ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 4 WP6837.15.odt they were in employment of the respondent-establishment as 'Sisters' since 2004. It was submitted in the complaints that they possess requisite qualification to work as 'Trained Nurse' and fall in the category of highly skilled employee. It was submitted that there were more than 100 employees in the respondent-establishment and said establishment is covered by the provisions of the Industrial Disputes Act, 1947, Model Standing Orders and also under the provisions of the Minimum Wages Act, 1946. It was submitted by the complainants that though, they had completed continuous service of 240 days in a calender year and acquired status of regular and permanent employees, they were deprived of the minimum wages and grant of status of permanent employees. It was submitted in the complaints that though, the respondent- establishment was in need of continuous services of the petitioners, with mala fide intention, the respondent-establishment asked the petitioners to undergo written test and personal interview. The petitioners were intimated that after completion of these formalities, fresh appointment letters would be issued. The petitioners were not agreeable to the terms and conditions of the respondent- establishment as the same was illegal and improper and as such, they refused to attend the test and interview. It was further submitted ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 5 WP6837.15.odt that under the garb of fresh appointments, the respondent establishment wanted to engage the petitioners on fixed term basis. 3] It was submitted by the petitioners/complainants that a communication was issued to petitioner no.1 - Vandana Satpude and other petitioners, dated 26.6.2015, informing that their appointment was for a fixed term and their services would come to an end with effect from 30.6.2015. Petitioner no.1 and the other petitioners, being aggrieved by the said communication, filed complaints before the Industrial Court on 01/7/2015 along with an application under Section 30(2) of the M.R.T.U. & P.U.L.P. Act for interim relief. The complaints were filed with the following prayers :
i] declare that the respondent has engaged in and is still engaging in the unfair labour practices complaint of ;
ii] direct the respondent to withdraw all these unfair labour practices during the pendency of these proceedings and also finally ;
iii] quash and set aside the impugned order dated 26.6.2015 issued by th respondent so as to terminate services of the complainant and also direct the respondent to allow the complainant to perform her duties as before ;
iv] direct the respondent to grant to the complainant regularization and permanency immediately from the date she has completed 240 ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 6 WP6837.15.odt days continuous service ;
v] direct the respondent to pay to the complainant minimum wages as are applicable to highly skilled employee in the scheduled employment of hospitals with retrospective effect and to pay the arrears thereof within a period of one month from the date of the order of this Hon'ble Court;
vi] pass such other order, direction or relief this Hon'ble Court deems fit and proper.
4] The respondent filed reply to the application. Specific grounds were urged by the respondent in the reply in respect of maintainability of the complaints and applications. It was submitted that the substantial grievance of the complainants was in respect of termination order and accordingly, substantial prayer was also for setting aside the alleged termination order. It was submitted by the respondent that letter/communication, dated 26.6.2015 was not an order of termination, but it was an intimation. It was submitted that petitioner no.1 and the other petitioners were appointed on fixed term basis vide orders issued to them. The period of fixed term was from 01.4.2015 till 30.6.2015. By the said communication dated 26.6.2015, it was informed that the contract between the parties by way of fixed term appointment would come to an end on 30.6.2015. It was further submitted that the nature of the respondent - ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
7 WP6837.15.odt establishment could not have been covered under the definition of an 'Industry', as defined under Section 2(j) of the Industrial Disputes Act, 1947. It was submitted that in view of the nature of respondent establishment itself, it was excluded from the purview of an 'Industry'. It was submitted that such fixed term appointment is covered under the provisions of the Industrial Disputes Act, more particularly under Section 2(oo)(bb). It was further submitted that the petitioners, by accepting the appointment on fixed terms basis, had agreed the terms of the contract between the parties and as such were not entitled to raise any claim either in respect of grant of permanency or wages. It was further submitted that total staff employed in the respondent-establishment is less than 50. It was also submitted that the respondent-establishment was not earning any profit. It was also submitted that though, the petitioners have raised the claim that they were working with the respondent establishment since long period, no material such as appointment orders etc. was placed on record to substantiate their claim. The Industrial Court, on consideration of the rival contentions of the parties passed the order dated 29.9.2015 and the same is impugned in the present petition.
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8 WP6837.15.odt 5] Mr. Thakur, the learned counsel for the petitioners
vehemently submitted that the learned Member, Industrial Court has misdirected itself by declining to entertain the complaints on the ground of maintainability observing that the Industrial Court has no jurisdiction to try and decide the complaints under Section 28 of the M.R.T.U. and P.U.L.P. Act. It was submitted by the learned counsel for the petitioners that the Industrial Court and the Labour Court are having same powers conferred upon them and on the backdrop of legislative mandate that both these Courts are expected to exercise the powers so as to prevent occurrence of unfair labour practices, the Industrial Court ought not to have adopted a hyper technical approach. The learned counsel also submitted that the Industrial Court has erred in placing reliance on the prayer seeking challenge to the termination order and ignoring the other prayer which were in the nature of other unfair labour practices. It was thus the submission of the learned counsel for the petitioners that a co-joint reading of the prayers on the backdrop of the relevant provisions was expected of the learned Member of the Industrial Court. The learned counsel then by referring to the provisions of the M.R.T.U. and P.U.L.P. Act submitted that the duties to be discharged by the learned Industrial Court and the learned Labour Court are provided ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 9 WP6837.15.odt under the Act. The Industrial Court misdirected itself on an erroneous assumption that every termination or dismissal attracts Item 1 of Schedule IV. The learned counsel vehemently submitted that jurisdiction of the Industrial Court to try unfair labour practices relating to discharge/dismissal is much wider than the jurisdiction of the Labour Court. It was also the submission of the learned counsel for the petitioners that the Labour Court is having restricted and limited jurisdiction in relation to Item I (a to g) of Schedule IV. The learned counsel also submitted that it would be unjust for the petitioners to ask them to challenge illegal termination firstly before the learned Labour Court and to await for its decision on the issue and for seeking relief in respect of other unfair labour practices. He further submitted that it would be in the interest of the petitioners to have decision in respect of alleged unfair labour practices from one forum like Industrial Court in one go. Mr. Thakur, the learned counsel for the petitioners has relied on the following judgments of the Apex Court and this Court in support of his submissions :
1. 1986 (2) SCC 624 SG Chemicals Employees' Union .vs. SG Chemicals
2. 1987 (1) CLR 23 (Bom) Pratibha Sambaji Kubal .vs. Ravindra Hindustan Platinum Pvt. Ltd. and others.::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
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3. 1989 Supp (1) SCC 226
Maharashtra State Co-op. Cotton Growers Marketing Federation Ltd. .vs. Shripati Pandurang Khade and others.
4. 1991 II CLR 726 Dalanvalan Imarat Bandhkam & Patbandhare Kamgar Union .vs. The state of Maharashtra and others.
5. 1994 (1) Mh.L.J. 776 Dattatraya Shankarrao Kharde .vs. Executive Engineer, Chief Gate Erection Unit No.2 and another.
6. 1998 II CLR 273 Industrial perfumes Ltd. .vs. Industrial Perfumes Workers Union
7. 2002 (1) CLR 699 (Bom) Bombay Transport and Dock Workers Union .vs. Aryadoot Transport Ltd. and others.
8. 2008 (1) Bom.C.R. 602 R.K. Shinde and others .vs. Shekoba Auto Pvt. Ltd. and another
9. 2011 (Supp.) Bom.C.R. 791 S.B. Patole and others .vs. Fujitsu ICIM Ltd. and others.
6] Per contra, Mr. Marpakwar, the learned counsel for the respondent vehemently submitted that no error is committed by the learned Industrial Court in disposing of the complaints. The learned counsel submitted that though, the petitioners submitted that they were in continuous service with the respondent for a long period and acquired status of permanent employee, no such material was placed before the Industrial Court, on the contrary, the appointment orders ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 11 WP6837.15.odt placed on the record of this Court clearly show that the petitioners were appointed for a temporary period on consolidated salary. The learned counsel then submitted that as appointment of the petitioners was in the nature of a contract for a fixed term and the respondent is entitled to appoint the persons on such fixed term basis, the case of the respondent is covered under the provisions of Section 2(oo)(bb) of the I.D. Act and as such, it is not the case of the termination as alleged by the petitioners.
7] Mr. Marpakwar, the learned counsel for the respondent then submitted that the petitioners had approached the Industrial Court challenging communication dated 26.6.2015 and the said communication is only an intimation letter. The learned counsel then submitted that the respondent is a registered trust and the petitioners were employed as Sisters in the hospital run by the respondent. He further submitted that in view of Section 2(j) of the I.D. Act, the respondent is excluded from the purview of 'Industry'. He then submitted that though the petitioners have alleged in the complaints and the applications that the respondent is running hospital having 60 indoor patients on regular basis and the number of outdoor patients vary from 80 to 100 per day, no material was ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 12 WP6837.15.odt placed on record to support this claim. On the contrary, he submitted that the respondent is running 50 bedded hospital. He further submitted that even the Municipal Corporation has granted permission to the respondent trust for 50 bedded hospital and there are various communications issued to the respondent by the State authorities to provide treatment either at the minimum charges or free of cost. Thus, it was the submission of the learned counsel for the respondent that the respondent is not earning any profit, but it is a charity and social service undertaken by the respondent.. 8] Mr. Marpakwar, the learned counsel for the respondent submitted that by this petition, the petitioners have challenged the communication dated 26.6.2015, by which services of the petitioners were to come to an end on 30.6.2015. The complaints were filed on 01.7.2015. As such, at the time of filing of the complaints, services of the petitioners were already terminated. The learned counsel then submitted that the main and substantial prayer of the petitioners was in respect of alleged termination and as such, the Industrial Court could not have exercised the jurisdiction in the matter of alleged termination and rightly disposed the complaints. The learned counsel then submitted that there are only 40 - 42 employees ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 13 WP6837.15.odt working in the hospital run by the respondent and in view of this fact, the Model Standing Orders are not applicable to the respondent establishment. The learned counsel placed heavy reliance on the judgment of this Court in the case Manoj Amdas Ingale .vs. Member, Industrial Court, Nagpur and another, reported in 2004 II C.L.R. 952 and submitted that as the reported judgment is in identical situation, the same squarely applies to the present matter. The learned counsel also placed heavy reliance on the judgments in the case of Shekoba Auto Pvt. Ltd. .vs. B.D. Hajare and others, reported in 2006 II C.L.R. 216 ; and Sunflag Iron and Steel Co. Ltd., Warthi .vs. Sunflag Iron and Steel Mazdoor Sabha, Warthi and another, reported in 2016 (1) Mh.L.J. 794.
9] Mr. Marpakwar, learned counsel for the respondent then submitted that though, the petitioners have prayed for regularization and minimum wages, the same could not have been considered unless and until the issue of termination is considered and the issue of termination can only be considered, tried and decided by the learned Labour Court. He submitted that the petitioners could have availed the remedy of filing complaints before the learned Labour Court and no prejudice would be caused to the petitioners by ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 14 WP6837.15.odt adopting such course of filing complaint before the appropriate forum i.e. learned Labour Court.
10] With the assistance of both the learned counsel, I have gone through the material placed on record as well as the judgment relied on by them. Though, the submissions of Mr. Thakur, the learned counsel for the petitioners look attractive at the first blush, on going through the material placed on record and the judgments relied on by him, I am unable to accept his submissions. Perusal of the material, particularly the complaints filed by the petitioners, show that the complaints revolve around the challenge to the letter/ communication, dated 26.6.2015. It is alleged that the respondent is indulged in unfair labour practice by appointing the petitioners on fixed term basis, though, the petitioners have completed 240 days service in a calender year and though, they were working with the respondent for a long period. The appointment orders placed on record at Annexure-4 in respect of petitioner no.1 - Vandana Satpute are of 23.4.2004, 29.9.2004, 30.12.2004, 12.3.2005, 10.4.2006, 06.11.2009, 12.4.2010, 31.3.2011, 09.4.2012, 01.4.2013, 03.4.2014 and 31.3.2015. The learned Member of Industrial Court, in its judgment, refers in detail to the initial date of appointments, period ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 15 WP6837.15.odt of extension and working period of the petitioners. Apart from petitioner no.1 - Vandana, the other petitioners were appointed in 2006, 2008, 2009, 2010, 2011, 2012, 2013 and 2014. Perusal of the appointment orders show that these appointments were for a fixed period and on consolidated salary and though, subsequently, the period was extended, the further appointments were also on consolidated salary. Though, it is submitted by the petitioners that the respondent, with an intention to deprive them from the benefits such as permanency and minimum wages asked the petitioners to attend certain examination and interview and the petitioners refused to attend the same, the order dated 31.3.2015 issued to petitioner no.1 shows that petitioner no.1 had undergone the process of an interview and was appointed on a temporary period i.e. from 01.4.2015 to 30.6.2015. The petitioners, though submitted before the Industrial Court that the respondent establishment is running hospital having capacity of 60 indoor patients and number of OPD patients vary between 80 to 100 per day, no material to support the claim was placed on record and said submission was countered by the respondent in reply to the application, submitting therein that the respondent is running hospital having capacity of 50 beds and even the Corporation has granted permission for 50 bedded hospital. ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
16 WP6837.15.odt It is submitted by the respondent that as per the various communications issued by the State Government, the respondent is asked to provide the treatment in the hospital either at the minimum charges or free of cost. Now these aspects certainly need consideration on assessment of material evidence to be led by the respective parties.
11] Mr. Thakur, the learned counsel for the petitioners vehemently submitted that Industrial Court is having wider jurisdiction whereas learned Labour Court is having restricted and limited jurisdiction. It would be useful to refer to the relevant provisions of Section 5 and Section 7 of the Act of 1971, which deal with the duties of the Industrial Court as well as Labour Court. The same read thus -
Section 5 - Duties of Industrial Court It shall be the duty of the Industrial Court,-
(a) to decide an application by a union for grant of recognition to it;
(b) to decide an application by a union for grant of recognition to it in place of a union which has already been recognized under this Act;
(c) to decide an application from another union or an employer for withdrawal or cancellation of the recognition of a union;::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
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(d) to decide complaints relating to unfair labour practices except unfair labour practices falling in Item 1 of Schedule IV;
(e) to assign work, and to give directions, to the Investigating Officers in matters of verification of membership of unions, and investigation of complaints relating to unfair labour practices;
(f) to decide references made to it on any point of law either by any civil or criminal court; and
(g) to decide appeals under section 42.
Section 7 - Duties of Labour Court It shall be the duty of the Labour Court to decide complaints relating to unfair labour practices described in Item 1 of Schedule IV and to try offences punishable under this Act.
It would also be useful to refer to Item 1 of Schedule IV of the Act of 1971, which reads thus -
Schedule - IV, Item 1 - To discharge or dismiss employees -
(a) by way of victimisation ;
(b) not in good faith, but in colourable exercise of employer's rights ;
(c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence ;
(d) for patently false reasons ;
(e) on untrue or trumped up allegation of absence without leave ;
(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste ;::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
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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.
12] The thrust of the petitioners in the complaints before the Industrial Court was challenge to the communication dated 26.6.2015 submitting that the respondent is indulged in unfair labour practice by illegally dismissing/terminating services. It was also the case of the petitioners that though, the work was available with the respondent-establishment, with mala fide intention, the respondent continued the petitioners as casual employees for a temporary period. In view of these allegations, the petitioners filed complaints under Item 6 of Schedule IV of the Act of 1971. It was also the submission of the learned counsel for the petitioners that the respondent was not granting the minimum wages to the petitioners and as such there was failure as contemplated under Item 9 of Schedule IV. It was also submitted that the petitioners were under compulsion to appear for written test and interview for continuity in service and as such this act was an act of force under Item 10 of Schedule IV. On the face of these averments and submissions, the forum to decide the complaints is the Labour Court. On this count, ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 19 WP6837.15.odt the submission of Mr. Thakur, the learned counsel for the petitioners that the forums namely Industrial Court and Labour Court are set with an object to prevent the unfair labour practices and it is the choice of the labour/workman to approach the concerned forum for redressal of the grievance, cannot be accepted. Mr. Thakur, the learned counsel placed heavy reliance on the judgment of the Apex Court in the case of S.G.Chemicals Employees' Union's case (supra), particularly paragraph 23 thereof, so also on the judgment of this Court in Dattatraya Kharde's Case (supra), Paragraph 23 in S.G. Chemicals case, reads thus -
"23. The last contention on the merits which was raised on behalf of the Company was that though the Company might have acted in contravention of the provisions of section 25-0 of the Industrial Disputes Act, it nonetheless would not amount to a failure to implement the Settlement dated February 1, 1979, entered into between the Company and the Union and, therefore, the act of closing down the Churchgate Division was not an unfair labour practice under section 28 of the Maharashtra Act read with Item No. 9 of Schedule IV to the said Act. This contention too found favour with the Industrial Court. For reaching the conclusion that the closing down of the Churchgate Division was not an act of unfair labour practice on the part of the Company, the Industrial Court relied upon the decision of a learned Single Judge of the Bombay High Court in the case of Maharashtra General Kamgar Union v. Glass-Containers Pvt. Ltd. The relevant passage in that judgment is as follows (at P.331) ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 20 WP6837.15.odt "It is difficult to accept the submission made on behalf of the Union that non-compliance with any statutory provisions such as S.25-FFA must be regarded as failure by the employer to implement an award, settlement or agreement. The position might be different in relation to certain statutory provisions which are declared to hold the field until replaced by specific provisions applicable to certain specific undertakings. For example, the Model Standing Orders may govern a particular employer and his workmen till repulsed or substituted by certified Standing Orders specially framed for that employer and approved in the manner provided under the statute or the rules. This would not imply that provisions such as those contained in s. 25FFA or s. 25-FFF of the Industrial Disputes Act can be held or deemed to be a part of the contract of employment of every employee. Any such interpretation would be stretching the language of item 9 to an extent which is not justified by the language thereof".
It is not possible to accept as correct the view taken in the said case. It is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with the law. Such a provision is not required to be expressly stated in any contract. If the services of a workman are terminated in violation of any of the provisions of the Industrial Disputes Act, such termination is unlawful and ineffective and the workman would ordinarily be entitled to reinstatement and payment of full back wages. In the present case, there was a Settlement arrived at between the Company and the Union under which certain wages were to be paid by the Company to its workmen. The Company failed to pay such wages from September 18, 1984, to the eighty-four workmen whose services were terminated on the ground that it had closed down its Churchgate Division. As already held, the closing ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 21 WP6837.15.odt down of the Churchgate Division was illegal as it was in contravention of the provisions of section 25-0 of the Industrial Disputes Act. Under sub- section (6) of section 25-0, where no application for permission under sub-section (1) of section 25-0 is made, the closure of the undertaking is to be deemed to be illegal from the date of the closure and the workmen are to be entitled to all the benefits under any law for the time being in force, as if the undertaking had not been closed down. The eigty-four workmen were, therefore, in law entitled to receive from September 18, 1984, onwards their salary and all other benefits payable to them under the Settlement dated February 1, 1979. These not having been paid to them, there was a failure on the part of the Company to implement the said Settlement and consequently the Company was guilty of the unfair labour practice specified in Item 9 of Schedule IV to the Maharashtra Act, and the Union was justified in filing the Complaint under section 28 of the Maharashtra Act complaining of such unfair labour practice."
13] Though, Mr. Thakur, learned counsel for the petitioners placed heavy reliance on the Apex Court judgment in S.G.Chemicals Employees' Union's case and the judgment of this Court in Dattatraya Kharde's Case, and though, there cannot be any doubt on the proposition of law reflected in these judgments, in view of the facts of the present matter, in my opinion, these judgments are of no help to the petitioners. Insofar as judgment in S.G. Chemicals Employees Union's case is concerned, it was the case of closure and the facts ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 22 WP6837.15.odt were such that there was a settlement arrived at between the company and the union under which certain wages were to be paid by the company to its workmen, but the company closed down its one division without complying with Section 25(O)(1) of the I.D. Act, which amounted to illegal closure in view of Section 25(O)(6). The workmen, whose services were terminated due to closure, were entitled to receive salary and other benefits payable to them on the retrenchment under settlement. The Apex Court, taking into consideration these facts namely, settlement between the parties, failure of the company to pay wages, fact that there were 84 workmen whose services were termination on the ground of closure, allowed the appeal by special leave. The Apex Court in the matter of S.G. Chemicals Employees Union's case also found that the respondent management was a 'factory' as defined in Section 2(m) of the Factories Act, 1948. A reference was also made to the definition of 'commercial establishment' contained in Section 2(4) of the Bombay Shops and Establishments Act, 1948. The other admitted fact before the Apex Court was the number of workmen in two divisions of the respondent company i.e. in one division there were 110 workmen, whereas in other division there were 60 workmen. It was also an admitted fact that in the Marketing and Sales Division of the ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 23 WP6837.15.odt company at the registered office at Churchgate, there were 90 workmen. On the backdrop of these facts, if the facts of the present matter are seen, it reveals that there is a dispute on the aspect of status of the respondent. The respondent claims that it is a hospital run by a charitable trust i.e. respondent and as such, it is neither 'commercial establishment' nor 'factory'. There is also dispute on number of workers or employees. The petitioners submit that there are 26 sisters and the hospital is having capacity of 60 indoor patients, whereas the respondent submit that the permissible capacity of the hospital is of only 50 beds and total staff is of 40 - 42 employees. It was also submitted by the learned counsel for the respondent that the respondent may be entitled for the benefit of provision namely Section 2(oo)(bb) of the I.D. Act. It will be useful to refer to the said provision, which reads thus -
"2. Definitions-
.............
(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-(a) ..........
(b) .........; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 24 WP6837.15.odt concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or"c] ...........
14] It was the submission of the learned counsel for the respondent that as employment of the petitioners was on fixed term basis, on completion of stipulated period, the respondent was entitled to terminate the services of the petitioners. It was also his submission that it was not mandatory for the respondent to renew the contract of employment in view of said provision. 15] Thus, though, the attempt of Mr. Thakur, learned counsel for the petitioners was that the learned Member, Industrial Court misdirected itself and ignored the grievances of the petitioners of unfair labour practice on the part of respondent i.e. non-grant of status of permanent employee and non-payment of minimum wages, the submission is on a presumption that the claim of the petitioners is admitted by the respondent, but such is not the case as referred to above. There is a serious contest on the claim of the petitioners. In view of these facts, no error is committed by the learned member of the Industrial Court in treating that the substantial grievance of the petitioners was in challenge to the letter/communication of ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 25 WP6837.15.odt termination. As such, the substantial prayer was for quashing said letter. Accordingly, the Industrial Court observed that the competent forum to adjudicate that issue is learned Labour Court and disposed of the complaints.
16] Thus, in view of these disputed facts, the claim of the petitioners cannot be accepted unless and until parties are permitted to lead evidence and the evidence and material is assessed by the competent forum. Though, Mr. Thakur, the learned counsel placed reliance on the other judgments referred to above, in most of the matters there was a case of closure and number of employees/ workmen was more than 50. In the facts of the present matter, there is considerable merit in the submission of the Mr. Marpakwar, the learned counsel for the respondent that the judgment of this Court in Manoj Amdas Ingale and others .vs. Member, Industrial Court Nagpur and another (supra) case is squarely applicable to the present case as in identical circumstances, this Court observed considering the substantive claim and grievance namely termination, that the complaint is exclusively triable by the Labour Court and the Industrial Court has no jurisdiction to entertain the complaint. ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
26 WP6837.15.odt 17] In Manoj Amdas Ingale's case (supra), reliance was
placed on the Apex Court judgment in the case of Dattatraya Shankarrao Kharde and another .vs. Executive Engineer and another (1994 I CLR 1022) and the judgment of this Court in R.P. Savant and others .vs. Bajaj Auto Ltd. (2002(1) Mh.L.J. 626). This Court, in Manoj Ingale's case, while referring to the submissions, observed thus : -
"14. No doubt that the contention raised by Shri S. D. Thakur, the learned Counsel for the petitioners that the complaints for dismissal or termination can be entertained by both the Labour Court as Industrial Court is with substance. On the perusal of Schedule II and Schedule IV, it would be clear as to in what circumstances, the termination could be challenged before the learned Labour Court or learned Industrial Court. If the termination falls in sub-clauses in Item (1) of Schedule IV, the complaints can exclusively be entertained only by the Labour Court. However, reading of Schedule II itself would make it clear that the provisions of Schedule II which has been relied by the learned Counsel for the petitioners would not be applicable to the termination of the nature which is subject matter of the present petition. Item 1 of Schedule II on which the learned Counsel for the petitioners relies, relates to threatening employees with discharge or dismissal if they join Union whereas, Clause (a) and Clause (b) of Item 4 Schedule II covers discharging or punishing an employee when such a dismissal or termination is related to encouraging or discouraging membership of any union. It is thus clear that the aforesaid dismissals or terminations or threat to dismiss or terminate, are intended to protect the freedom of association of the members of the Union. The ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 27 WP6837.15.odt aforesaid provisions are intended to protect the employees, so that by their free will, they can join any union. They are also intended, so that the management does not interfere in the rivalries of the Union and encourage or discourage a particular union by threatening the employees to join or not to join a particular union. Admittedly, the terminations in the present case are not related to encouragement or discouragement of trade unions and as such, the said items of Schedule II, which have been relied by the learned Counsel for the petitioners, are of no relevance for the purpose of present petition. So also Item No. 7 of Schedule IV would have no relevance insofar as the present petition is concerned. The said item relates, to discharge or discrimination against an employee, for filing charges or testifying against an employer in any enquiry or proceeding related to any industrial dispute. The said item protects an employee of his freedom of filing charge or testifying against an employer in any enquiry or proceedings relating to any industrial dispute. The same is not the case here. Therefore, the aforesaid provisions which have been relied on by the learned Counsel for the petitioners would have no relevance for the present petition.
15. Insofar as the contention of the petitioners, that, model standing orders will have to be read as inclusive in the word "agreement" under Item 9 is concerned, the same question is no more res Integra as it is concluded by the judgments of the Division Bench of this Court in the cases of Dattatraya Shankarrao Kharde and Anr. v. Executive Engineer, Chief Gate Erection Unit No. 2 Nagpur and Anr. (cited supra) and R. P. Sawant and Ors. v. Bajaj Auto Limited and Anr. (cited supra). In view of the law laid down by the judgments in the aforesaid cases, it is clear that the model standing orders are included in the term "agreement" under Item 9.
16. The limited question that arises for consideration, in the present petition, is that when on the factual ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 28 WP6837.15.odt basis the main grievance raised in the complaints is regarding termination of an employee, and when they have also raised by way of ancillary grievances; whether a complaint will lie before the Labour Court or an Industrial Court.
24. Insofar as the main emphasis placed by Shri S. D. Thakur, the learned Counsel for the petitioners on the findings given by this Court that the standing orders are covered under the term "agreement" under Item 9 of Schedule IV is concerned, as I have already held hereinabove that the said question is no more res integra. However, one is unable to understand, as to how the aforesaid ratio would come to the help of the petitioners, when on facts of the present case, it has been found that the main grievance of the petitioner relates to termination. In my view the aforesaid judgment of the Division Bench in Dattatraya Shankarrao Kharde's case, is of no assistance to the case of the petitioners.
25. In that view of the matter, I am of the considered view, that the learned Industrial Court was right in dismissing the complaints of the petitioners, on the ground that the grievance of the petitioners was exclusively triable by the Labour Court and, therefore, it had no jurisdiction, to entertain the complaints. The petition is, therefore, dismissed with no order as to costs. Rule is accordingly discharged. Petition dismissed.
18] Mr. Marpakwar, the learned counsel for the respondent also placed reliance on the judgment of this Court in the case of Nagpur District Central Cooperative Bank Ltd. .vs. Prashant Ashokrao Salunke and another, reported in 2016 (1) Mh.L.J. 706. This Court observed at paragraphs 18, 19 and 21, thus - ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
29 WP6837.15.odt
18. Again in the case of Gangadhar Pillai (supra), the Apex Court was considering the case of a workman who was appointed for a specific period. After the services of the workman had come to an end, he filed a complaint before the Industrial Court contending that the employer had committed an unfair labour practice within the meaning of Item 6 of Schedule IV of MRTU & PULP Act. The complaint was dismissed by the learned Industrial Court. A writ petition challenging the same and the letters patent appeal were respectively dismissed by the learned Single Judge and the Division Bench of this court, contending that an employee was purposefully kept on a temporary basis for a period of 22 years. It was contended before Their Lordships of the Apex Court that the employer had indulged in unfair labour practice as specified in Item 6 of Schedule IV of the MRTU & PULP Act. Their Lordships observed thus:-
"27. It has furthermore not been denied or disputed that services of the employees engaged on such terms would come to an end on completion of the period of contract. Such retrenchment would come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of the appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for defrauding an employee. The object of such temporary employment was bona fide and not to deprive the employee concerned from the benefit of a permanent status. We, having regard to the fact situation obtaining herein, cannot infer that the findings of the Tribunal as also the learned Single Judge of the High Court were manifestly erroneous warranting exercise of our extraordinary jurisdiction under Article 136 of the Constitution of India.
28. It is not the law that on completion of 240 ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 30 WP6837.15.odt days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/ or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularised. Direction to reinstate the workman would mean that he gets back the same status.
(emphasis supplied)
19. It could be seen from the aforesaid observations that once the services of the employee engaged on a contractual basis for a fixed period come to an end on account of completion of the period of contract , the same would come within the purview of Section 2(oo) (bb) of the ID Act. It has been further held that once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of the appellant was actuated by any malice. It has been further held that merely on completion of 240 days of continuous service in a year, the employee concerned does not become entitled for regularisation of his services and/or permanent status. Their Lordships have held that under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25F of the ID Act, before he is retrenched from services and not for any other purpose. It has been further held that in the event of violation of the said provision takes places, termination of services of the employee may be found ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 31 WP6837.15.odt to be illegal, but only on that account, his services cannot be directed to be regularised.
21. It could thus be seen that while construing the provisions of Section 2(oo)(bb) read with Chapter V- A of the ID Act, Their Lordships have consistently held that if the contract of employment is for a fixed period and the appointment is terminable at the end of the period of contract, then in view of provisions of Section 2(oo)(bb), the provisions of Chapter V-A would not be applicable. It has been further held that assuming that a workman has completed 240 days' of service in a year, even then if the provisions of Section 2(oo)(bb) of the ID Act are applicable, the provisions of Chapter V-A of the ID Act would not be applicable. It has been further held that what is important is substance of the contract and not the form.
19] In the case of Sunflag Iron and Steel Co. Ltd., Warthi (supra), relied on by the learned counsel for the respondent, judgment of the Apex Court in S.G. Chemicals Employees' Union's case was relied on, identical submissions were advanced and this Court while dealing with the submissions observed thus at paragraphs 9, 10 and 11 -
9. Aforesaid decision of the Division Bench was challenged before the Supreme Court in Hindustan Lever Ltd. (supra). After considering the entire scheme of the said Act, it was observed by the Supreme Court in para 19 of its judgment that the term "to discharge or dismiss" also indicates an attempted action towards such discharge or dismissal. In para 24 thereafter it was held that to discharge or dismiss an employee would include the final act of discharge or dismissal as well as any penultimate step taken towards that ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 32 WP6837.15.odt destination. Thereafter, in para 29, it has been observed thus:
"29........................................................... 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" would be rendered totally redundant and otiose, as such a completed action would already stand covered by the earlier phrase "has engaged in any unfair labour practice". Similar words are found in Section 30(1) which deals with powers of the courts and provides that where the court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may by its order give relief as mentioned in clauses (a), (b) and (c) of that sub- section. A conjoint reading of Section 28(1) and Section 30(1) clearly shows that complaint can be filed for the alleged unfair labour practice as contemplated in Item 1 of Schedule IV on any of the grounds mentioned therein, both at the stage where such final orders of discharge or dismissal are passed on the alleged grounds concerned and also at the stages prior to such final orders, once the employer is shown to have taken a firm step in that direction by initiating departmental enquiries with a view to ultimately discharge or ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 33 WP6837.15.odt dismiss the employee on any of the alleged grounds and such enquiries are presently in progress or are presently in the offing. Then the employer can be said to be presently engaging in any such unfair labour practice. It becomes obvious that the twin phrases 'has engaged' and 'is engaging in' indicate not only the finished, complete or continuous action but also an incomplete continuous action."
It was thereafter concluded that if an employer is alleged to be engaged in discharging any employee even before the actual order of discharge is passed he can be said to be engaged in such discharge if it is shown that an attempt is made with an intention to ultimately discharge the employee.
10. If the facts of the present case are examined in the light of aforesaid law, it is obvious that by communication dated 30-6-2014, the petitioner has taken penultimate step with a view to discharge the employee from service on 2-9-2014. Hence, in the light of aforesaid law, it can clearly be said that a step had been taken by the petitioner to discharge from service of an employee. It is also to be noted that the Supreme Court in the aforesaid decision also recognized the powers of Labour Court to issue interim orders with a view to prevent an alleged unfair practice from getting fructified.
11. The contention that there was failure to implement the settlement or agreement due to which provisions of Item 9 were being invoked is urged on the basis of the decision in S. G. Chemicals (supra). Said case considers violation of provisions of Section 25-O of the Industrial Disputes Act, 1947. However, considering the facts of the present case, the result being one of intended discharge, the jurisdiction in that regard was available under Item 1 of Schedule IV. Item 1(b) would cover a case of colourable exercise by the employer of his right which is not in good faith.::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::
34 WP6837.15.odt Similar submission was considered in Pepsico India Holdings (supra) and it was held that appropriate relief could be claimed before the Labour Court. In Zim Laboratories Ltd. (supra), it was found that no steps for terminating the services of the employees were taken. The only direction sought was to provide them wages. It was in that background that this Court found that as there was existence of relationship of employer and employee between the parties, the same was sufficient to attract Item 9 of Schedule IV. As regards judgment of the learned Single Judge in C. R. Dhuri (supra), it was pointed out by the learned Counsel for the petitioner that the same has been subsequently set aside in Appeal No.432/2006 Managing Director Vs. C. R. Dhuri by the Division Bench vide judgment dated 19-7-2006. Similarly, the facts in the case of Ram Khicher (supra) are clearly distinguishable from the case in hand.
20] There is also merit in the submission of the learned counsel for the respondent that while disposing of the complaints on the ground of jurisdiction, the Industrial Court permitted the petitioners to approach the appropriate forum such as the petitioners were only directed to approach the appropriate forum and it is not the case that the petitioners were having no forum to agitate their grievances and seek redressal of the same.
21] Considering all the above referred aspects, in my opinion, no error is committed by the learned Member of the Industrial Court. The petition thus being devoid of merit, deserves to ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 ::: 35 WP6837.15.odt be dismissed and the same is accordingly dismissed.
Rule stands discharged. No order as to costs.
JUDGE Diwale ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:59:47 :::