Jacob Chinnannan vs Sudarshan Aluminimum Industries ...
2002 Latest Caselaw 126 Bom

JUDGMENT

Nishita Mhatre, J.

1. Through this writ petition, the petitioner has challenged the order of the Labour Court rejecting the reference made for adjudication on the ground that the petitioner had already initiated proceedings under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

2. The petitioner was employed as a Turner with respondent No. 1 on 1-3-1982. On 2-10-1986, after holding an enquiry, the petitioner was dismissed from service on account of certain acts of misconduct. On 10-10-1986, the petitioner wrote a letter to the Labour Commissioner informing him of his dismissal. On 19-12-1986, the petitioner filed a complaint before the Labour Court under Item 1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as MRTU and PULP Act). While this complaint was pending, the petitioner sent a demand on 24-4-1987 to respondent No. 1 and simultaneously filed a justification statement. The dispute was admitted in conciliation and the parties appeared before the conciliation officer. The petitioner informed the conciliation officer in 1987 that he no longer wished to proceed with the conciliation and the proceedings should be dropped. However, the complaint before the Labour Court

proceeded and on 4-12-1987, the complaint was dismissed for default. A written statement had already been filed by the respondent before the Labour Court.

3. A reference was made for adjudication before the Labour Court on 28-1-1988 and the petitioner filed a statement of claim. Written statement was filed by the respondent wherein it was contended that the workman had already initiated proceedings under the MRTU and PULP Act and, therefore, the reference was not maintainable in view of the provisions of Section 59 of the MRTU and PULP Act.

4. It has been submitted by the learned Advocate for the petitioner that the petitioner was gravely prejudiced for the reference being dismissed. She submits with great vehemence that the petitioner had informed the conciliation officer that he no longer wished to pursue the conciliation proceedings as a complaint was already filed before the Labour Court pertaining to his dismissal. She submits that although the petitioner did not wish to pursue the proceedings under the Industrial Disputes Act, the conciliation officer did not close the proceedings and a reference came to be made in 1988. She submits that despite the workman's best intentions to proceed with only one matter, the petitioner found that the conciliation proceedings were not closed and therefore, requested his Advocate to withdraw the complaint filed before the Labour Court. She further submits that since the advocate did not bother to withdraw the complaint in time and the petitioner was not informed that the complaint has not been withdrawn, he did not remain present before the Labour Court and the complaint came to be dismissed for default. She further submits that since the complaint was dismissed for default and was not heard on merits, the question of the Labour Court rejecting the reference on the basis of Section 59 of the MRTU and PULP Act cannot arise.

5. She submits that in view of the judgments of this Court in the case of Consolidated Pneumatic tool Co. (I) Ltd. v. R. A. Gadekar and Ors. reported in 1986 Mh.LJ. 238 = (1986) 1 CLR 322 and the Full Bench judgment in the case of C. S. Dixit v. Bajaj Tempo Ltd. reported in 2000 (4) Mh.LJ. 261, the power of Section 59 will not operate as the complaint was not heard on merits but was dismissed for default.

6. Mr. Karnik, learned Advocate appearing on behalf of Respondent No. 1, submits that the petitioner having elected the remedy provided under the MRTU and PULP Act, could not then pursue the proceedings under the Industrial Disputes Act only because the complaint was dismissed for default. He submits that the conduct of the petitioner is far from honest as he has led the respondent to believe that he was no longer interested in the conciliation proceedings and was going to pursue the proceedings under the MRTU and PULP Act. He submits that it is only because the complaint was dismissed for default, after the written statement was filed by the respondent, that the petitioner has chosen to proceed with the pending conciliation proceedings. He submits that in view of the judgment of the Full Bench in the case of C. 5. Dixit (supra), in the present facts and circumstances of the case, it could not be said that the bar of Section 59 is not attracted. He submits that the case of the petitioner was such that it was only because the complaint was dismissed for default that he had chosen to continue with the remedy available under the Industrial Disputes Act.

7. In the case of C. S. Dixit (supra), where this Court has considered the case of Consolidated Pneumatic Tool Co. Ltd. (supra), it has been held that if a person takes recourse to a remedy when the remedy itself is barred, it could not be said that he had initiated proceedings as the remedy itself was barred. It has been further observed that if the plea of limitation is taken, then the complainant should be treated as a person who has been refused the entry even though the point of limitation may have been decided at the end of the trial. In that event, the bar of Section 59 of the Act cannot be invoked. It has also been observed that mere filing of the complaint under the Act without anything done in the matter does not attract the provisions of Section 59. The Full Bench in C. S. Dixit's case (supra) has observed thus:

"21. We are further of the opinion that if before any effective steps are taken by the Industrial Court under the said Act when the matter is withdrawn then also the bar would not apply. As to what could be the effective steps, the question is to be decided as to the facts and circumstances, which in a given case, will induce us to conclude that the effective steps are not taken. At the same time, if effective steps are taken, bar under Section 59 would certainly apply. No party can be permitted to either shop the forum or avoid outcome of its own action on the ground of exigency of convenience."

8. In the present case, the petitioner had initially approached the Labour Commissioner and had brought to his notice that his services were wrongfully terminated. As he heard nothing from the Labour Commissioner's office instead of pursuing the same remedy, he chose to file a complaint under the MRTU and PULP Act. After the written statement was filed, the complaint came to be dismissed for default since the petitioner chose to remain absent. The submission that his advocate did not withdraw the complaint and, therefore, he has been prejudiced would not be of any consequence. The petitioner had in fact chosen the remedy under the MRTU and PULP Act and ought to have pursued that diligently. Notice had been issued to the respondent pursuant to which the written statement had been filed by him. Therefore, in the facts, and circumstance of the present case, it could not be said that there was no initiation of proceedings or that no effective steps had been taken in the matter.

9. The petitioner well aware of the fact that he had filed a complaint on 19-12-1986, chose to raise the demand on the respondent-employer on 24-4-1987 and simultaneously filed a justification statement. Therefore, the petitioner has throughout been trying to ride two boats at the same time. Having failed in the complaint, the petitioner pursued the conciliation proceedings and obtained the reference. The petitioner has been prevaricating over the remedy available to him throughout. This would, in my view, attract the provisions of Section 59 of the MRTU and PULP Act. Merely because the complaint is not decided on merits but was dismissed for default, would not give a right to the petitioner to pursue the reference. He had chosen to pursue the complaint as is clear from his letter of 19-12-1986 to the conciliation officer and, therefore, the question of his being prejudiced by the reference being rejected does not arise. He had in fact, chosen to pursue the remedy available under the MRTU and PULP Act in a complaint and once the same was dismissed for default, he could not then go back to the

remedy under the Industrial Disputes Act. In any event, the Industrial Court had taken effective steps as notices were issued and the respondent had filed the written statement.

10. In view of this, petition is dismissed, however, with no order as to costs.