Theatre Employees' Union vs Deepak Talkies
2004 Latest Caselaw 409 Bom

JUDGMENT

S.U. Kamdar, J.

1. In both the present writ petitions the employer as well as the employee are challenging the impugned order passed by the Industrial Court on 16-3-2001 on a complaint filed by the employee under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act, 1971").

2. For the purposes of the present petitions, the employer being the petitioner in Writ Petition No. 339 of 2002 and Respondent No. 1 in Writ Petition No. 2623 of 2001 is hereinafter referred to as the petitioner-employer and the Respondent No. 1 i.e. Theatre Employees' Union in Writ Petition No. 339 of 2002 and the Petitioner in Writ Petition No. 2623 of 2001 is hereinafter referred to as the respondent-union.

3. The facts of the present case briefly enumerated are as under :--

The respondent-union are the employees union in the theatres which are run and situated at Bombay. The Petitioner is the owner of one of the theatres known as M/s Deepak Talkies in Bombay. It is the case of the petitioner that on the death of her husband late Shri S.D. Shah on 5-1-1998, the petitioner took over the right, title and interest and possession of the Deepak Theatre with effect from November 1998. It was the case of the respondent-union that there are various employees who are employed by the petitioner-employer part-time though they in fact fall under the categories for full time employees. It is the further case of the respondent-union that an award has been passed being an Arbitration Award dated 27-6-1980 in Reference (VA) No. 1 of 1979 by Shri B.B. Tambe (hereinafter referred to as "Tambe Award") and the said Tambe Award inter alia prohibits the employment of the workers in the said categories in which they are employed as part-time employees in the said theatre. It is thus the case of the respondent-union that there is a breach and/or non-compliance of the Tambe Award. On the basis of the aforesaid contention, the respondent-union has preferred a complaint to the Industrial Court under the provisions of the MRTU and PULP Act, 1971. It is the case of the respondent-union that there is a breach of items 6 and 9 of Schedule IV of the MRTU and PULP Act, 1971 as well as item 1(a) of Schedule II of the said Act. The said items 6 and 9 of Schedule IV read as under :--

"6. To employ employees as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees".

"9. Failure to implement award, settlement or agreement."

"1. To interfere with, restrain or coerce employees in the exercise of their right to organise, form, join or assist a trade union and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say -

(a) threatening employees with discharge or dismissal, if they join a union;

4. The said complaint was preferred before the Industrial Court at Mumbai being Complaint (ULP) No. 1536 of 1998. On the said complaint the replies were filed and ultimately witnesses were examined. After examining the witnesses, the learned Industrial Court has by an order dated 16-3-2001 allowed the complaint in part. It has been inter alia held that it is true that the petitioner-employer has been engaged in unfair labour practices under item 9 of Schedule IV of the MRTU and PULP Act, 1971 and they are further directed to cease and desist from engaging in such unfair labour practices with immediate effect. It has been also further directed that the employees employed in the said theatre should be given a status and benefits on par with the permanent workmen and the categories of the said workmen have been set out in paragraph 3 of the operative part of the order of the Industrial Court. The learned Industrial Court has further granted the status and the benefits to the said employees on par with the permanent workers with effect from 1-11-1998. Insofar as one of the workers i.e. Shri Uttam Sawant is concerned, the benefit is granted from 1-11-1998 to 25-11-2000 as on that date he was dismissed from service. The learned Member of the Industrial Court has also directed that the arrears should be payable in respect of wages on the basis of minimum wages payable to the workers as per the provisions of the Minimum Wages Act with effect from 1-11-1998.

5. It is this order which is the subject matter of challenge before me in the present writ petitions. Insofar as the petitioner-management is concerned, the petitioner-management is challenging the said order in its entirety by inter alia contending that there is no unfair labour practice committed by them under item 9 of Schedule IV of the MRTU and PULP Act, 1971. It has been further contended that the complaint being baseless and without any merit, the same should have been dismissed by the Industrial Court. In support of this contention the learned counsel appearing for the petitioner-management has inter alia contended that the Tambe Award passed on 27-64980 stood modified and/or amended by a consent term filed in Writ Petition No. 79 of 1981. It is further his case that by virtue of the amendment to an award under the consent terms filed in the aforesaid Writ Petition No. 79 of 1981 on 27-4-1983, the findings of the learned Industrial Court that the respondent-union's members are entitled to be absorbed in a full time employment and cannot be continued in part time work is erroneous and incorrect and the same should therefore be set aside. In support of his argument, the learned counsel for the petitioner-management has also relied upon Hirurkar Award dated 14-11-1995 particularly paragraph 88 insofar as it deals with Demand No. 23 of the said respondent-union in which it is inter alia demanded by the respondent-union that all the categories of part time employees should be abolished and only the full time nature should be continued. It has however been further contended that in the said award it was ultimately decided that the existing practice as covered by Tambe Award and further modified by the consent terms in Writ Petition No. 79 of 1981 shall be continued. It has been therefore, argued by the learned counsel appearing for the petitioner-management that the contention of the respondent-union in the Industrial Court that there is an unfair labour practice by virtue of persons being continued contrary to or in breach of the Award of Tambe, J. is baseless and erroneous and the present complaint therefore ought to have been dismissed by the Industrial Court. It has been further argued in the alternative that in any event the learned Industrial Court has not considered the effect of the consent terms dated 27-4-1983 which in effect modified the Tambe Award and thus, the matter should be remanded back to the learned Industrial Court for the purpose of considering the so called modification covered under the consent terms dated 27-4-1983.

6. On the other hand, the learned counsel appearing for the respondent-union has contended that the modification which is being argued under the consent terms dated 27-4-1983 does not apply in the case of the employees who are covered by the order passed by the Industrial Court, It is his case that the modification pertains to the part time workers who were covered only in respect of those employees who have been permitted to continue as part time workers in the Tambe Award and do not pertain to their case and or those categories in which the Tambe Award has prohibited the part time employment totally. It is therefore, his case that the case insofar as the respondent-union and its members is concerned, who are the subject matter of the Industrial Court's adjudication, are not covered by the consent terms dated 27-4-1983 inasmuch as modification has not been made applicable to this category. It is his further case that the said consent terms and Hirurkar Award has therefore to be looked into together in light of the aforesaid contention and if looked into in proper perspective then in that event it is clear that the employees who have agitated the case before the Industrial Court are not covered by the said modification of the Award and the Tambe Award applies in its full force. The learned counsel appearing for the respondent-union before me in support of his writ petition being writ petition No. 2623 of 2001 has inter alia contended that the order of the Industrial Court in Clause (5) directing arrears and the difference payable in respect of wages on the basis of the minimum wages payable is erroneous and incorrect in as much as once it is found that they are entitled to permanent employee status then they are entitled to full time wages as conferred by virtue of Tambe Award and, thus, the learned Member of the Industrial Court ought not to have granted only the minimum wages under Clause (5) of the said Industrial Court order. It has been also further contended by the learned counsel for the respondent-union that the date of 1-11-1998 which has been taken into consideration by the learned Industrial Court is erroneous and incorrect and the benefits ought to have been conferred from the date of their employment and not on the basis of the date prescribed as 1-11-1998. The learned counsel appearing for the respondent-union has further contended that the direction given by the Industrial Court in paragraph 23 insofar as one of the employee, namely, Mr. Adajania is concerned, is erroneous and incorrect in which it has been held that he having signed the letter of 31-3-1991 and left the service, is not entitled to the benefits at all and therefore his name has not been included in Clause (3) of the operative part of the said award. These challenges are posed before me by the learned counsel for the respondent-union in support of his writ petition.

7. On considering the rival contentions before me by the parties, I find that it is essential to look into the award passed by Tambe, J. dated 27-6-1980 which resolved the differences and disputes by and between the parties particularly those pertaining to the part time employment. The relevant portion of the said award is paragraph 150 which reads as under :--

"150. Thus it can be seen that such a practice has been started newly by some of the cinemas. This is certainly undesirable practice which seriously affects the interest of the permanent workers. This should be stopped immediately. There is no force in the contention of the employers that the workers have only 2/3 hours work. It should be noted that the regular three shows start from 3-00 p.m. onwards and therefore, in most of the categories all the workmen such as projection operator, booking clerk, door keeper and many others have got regular work for each show. So they are kept engaged from 3-00 p.m. onwards till the last show is over at mid-night. Similarly there is no force in the contention that the minimum wage committee had recommended or had approved this system. What that committee had held was that in case any part time employment is given for justified reason then there should be some minimum wage for such category of employees. So they only prescribe the minimum wage for this type of category of employees. That does not mean that they approve this undesirable practice of engaging temporary workers in place of permanent workers. There are such posts which require no doubt part time workers. These posts are like those of painters or carpenters and such others. Carpenter has no permanent work everyday and so also painter. So in such a case the management may employ part time workmen and for that the minimum the wage committee had fixed the minimum wage. There is also no force in saying that many people get employment on account of this system. This is a vicious argument. It will have the effect of reducing the permanent workers to part time workers and then the management would be required more workers for part time duties. This would affect very seriously the permanent workers. So this method which is certainly beneficial to the management, cannot be approved at all on the ground that it would give employment to many other persons. Now, as many theaters have tried to start this practice, and as it is expedient to stop this practice a certain direction is necessary. Hence considering all these aspects, I give the following directions :--

(i)     No workman shall be engaged on part time basis or on show wise basis in a category which is essentially of permanent and full time nature. The practice of employing part time worker in place of full time worker for a full time job should be immediately discontinued wherever it is in existence.
 

(ii)    If a job is essentially of a part time nature like that of a painter, for instance, then the worker employed on such a job will be paid 75 per cent of hourly rate of basic plus D. A. calculated on the basis of the corresponding category of full time workers on the basis of 8 hours work a day with a minimum of four hours wages and D.A. per day under revised scales and D.A. This is to take effect from 1st January 1978.
 

(iii)   If any part time worker for a job of permanent and full time nature has already been engaged in any theatre such a worker shall be made permanent immediately and he shall be paid salary plus D.A. and other benefits on the basis of revised scale and D.A. of a permanent and full time workman of the concerned category from the date of his first joining as a part time worker. This will have effect from 1st July 1980."
 

On perusal of the said paragraph 150 it is evident and clear that it has been decided that the practice of the temporary workers in the theatres should be discontinued and only the permanent employees should be employed because the employees start from the first show for 3.00 p.m. and continue the work till the last show. It has been further stated in paragraph 150 Sub-clause (i) that no workman shall be engaged on part time basis or show wise basis in a category which is essentially of permanent and full time nature. The practice of employing a part time worker in place of full time worker for a full time job should be immediately discontinued wherever it is in existence. However, while passing the said award in respect of various categories two of the categories namely painters or carpenters it has been agreed and settled by Tambe Award that there can be a part time nature of work. In Sub-clause (ii) of paragraph 150 it has been stated in the said award that in so far as the job of a part time nature like that of a painter is concerned, for instance, then the worker employed on such a job will be paid 75 per cent of hourly fate of basic plus D.A. calculated on the basis of the corresponding category of full time workers on the basis of 8 hours work a day with a minimum of four hours wages and D.A. per day under revised scales and D.A. This is to take effect from 1st January 1978. In Sub-clause (iii) it was further stated that if any part time worker for a job of permanent and full time nature has already been engaged in any theatre such a worker shall be made permanent immediately and he shall be paid salary plus D.A. and other benefits on the basis of the revised scale and D.A. of a permanent and full time workman of the concerned category from the date of his first joining as a part time worker. This will be with effect from 1st July 1980. Thus, a mere perusal of the award passed by Tambe J. prescribes two classes of workers, one class of workers where the employees were employed part time where it has been found that in fact they are doing full time work and the practice of employing them as part time workers has been directed to be discontinued and directions are given that they should be treated as full time workers. At the same time, looking at the nature of work Tambe Award has continued part time employment in respect of restricted categories such as painter and carpenter. Thus, the Tambe Award covered both categories which are that of full time workers and that of part time workers. In the light aforesaid, if the consent terms which is filed in Writ Petition No. 79 of 1981 is considered particularly Sub-clause (iii) of the said consent terms it is clear that it covers only those categories which are continued as part time workers under Tambe Award. For the sake of ready reference, the said Sub-clause (iii) of Clause 1 of the said consent terms reads as under:--

(iii) As regards part-time workmen, such workmen who are working less than four hours will be paid only 60% of the awarded wages and dearness allowance and only those part-time workmen who work more than four hours but upto five hours will be paid 75% of the awarded wages and dearness allowance as per the Award."

This clause does not in any manner stipulate or state that even though the direction has been given by Tambe Award in Paragraph 150 (i) to (iii) that part time employment should be discontinued in various categories and they should be absorbed on permanent basis is in any way modified or set aside by the consent terms dated 27-4-1983. On the contrary, Clause (iii) talks about the continued part time workmen when it begins with the words "As regards part-time workmen". Thus, Clause (iii) modifies only paragraph 150 Sub-clause (ii) of the said Tambe Award and does not in any manner modify Sub-clause (1) or sub Clause (iii) of the Tambe Award dated 27-6-1980. It is further clear from the further reading of the said consent terms that 75% of the awarded wages and dearness allowance will be paid to those part-time workmen who work more than four hours but upto five hours and 60% to those workers whose hours of work have been prescribed as four hours. On reading of the said Sub-clause of the consent terms, I have no doubt in my mind that it only speaks of Sub-clause (ii) of paragraph 150 of the Tambe Award and not as contended before me by the learned counsel for the petitioner-employer that it provides for continuation of part time workmen in all categories of employment meaning thereby that it also modifies the provisions of paragraph 150 with Clauses (i) and (ii) of the said Tambe Award. Now in this light of the fact if the subsequent award passed by Hirurkar dated 14-11-1995 is read particularly paragraph 88 and demand No. 23 which reads as under :--

88. Demand No. 23 : Part Time Employment: It is demand of the Union that, "no workman shall be engaged on part time basis or on show wise basis in 8 category which is essentially of permanent and, full time nature, however, if any particular job such as that of a painter is essentially of a part time nature, such part time workmen who are working for less than 4 hours, will be paid 60% of the wages and D.A. applicable to that category And those part-time workmen who work for more than 4 hours but upto 5 hours, shall be paid 75% of wages and D.A. of the corresponding category. All other service conditions for such part time workmen shall be the same as those of other full time workmen". The Union agrees to Tambe Award as modified by consent terms before the High Court in Writ Petition No. 79 of 1981, so also this issue was discussed in Tambe Award. The Labour Advisory council agrees to existing practice, the Union has not given any justification for demand. No evidence was led by either of the parties. Hence, existing practice should be continued."

On the reading of the said paragraph 88, it is clear that it was the contention of the respondent-union that even in respect of the categories of part time workers which are permitted by the Tambe Award and are continued by virtue of the consent terms dated 27-4-1983 should also be abolished but ultimately it was suggested that the prevailing practice as covered by the Tambe Award and as covered by the said modified consent terms should be continued. Thus, in my view, the Award passed by Hirurkar does not in any manner suggest that the part time employees in all categories of the workers are allowed to be continued as contended by the counsel for the petitioner-employer before me.

8. Further argument advanced before me by the learned counsel for the petitioner-employer that the Industrial Court has not considered the said consent terms dated 27-4-1983 has also equally no merit whatsoever for various reasons. Firstly, the petitioner-employer has filed a written statement to the complaint before the Industrial Court. In the said complaint no reliance or reference is made of any nature whatsoever to the said consent terms dated 27-4-1983 passed in Writ Petition No. 79 of 1981 nor any such plea which has been advanced before me in the Court or argument in the present petition was raised in the written statement filed by the petitioner-employer before the said Industrial Court. Apart therefrom, at no point of time either by averments or in argument, the said consent terms dated 27-4-1983 were produced and/or a plea was raised that the said Tambe Award being modified by the consent terms, the entire temporary workmen in all categories would be allowed to continue. When it was so pointed out to the learned counsel for the petitioner-management, it was argued by the learned counsel for the petitioner-management before me that it was the duty of the respondent-union to have produced the said consent terms and/or it was the duty of the Industrial Court to have considered the said consent terms. I am not impressed by this argument. Firstly, the reliance having been placed as and by way of modification by the petitioner-employer therefore, it is for them to prove the modification by producing the consent terms. Secondly, I have found that in fact the order was passed by the Industrial Court without considering the said consent terms dated 27-4-1983 as it was never forming part of the record before the Industrial Court as neither of the parties have produced the same. In any event, even after considering the consent terms, I am of the view that the contentions raised by the learned counsel for the petitioner-employer in the present case have no merit and accordingly the same are rejected.

9. The learned counsel appearing for the petitioner-employer has relied upon a judgment of the Apex Court in the case of Cipla Ltd. v. Maharashtra General Kamgar Union and Ors. reported in 2001 (I) CLR 754 and it has been inter alia contended that in view of the fact that the jurisdiction conferred on the Industrial Court in Section 28 being of the summary nature, the learned Industrial Court could not have adjudicated the issue of the nature of the work carried out by the employees. The learned counsel placed reliance on the judgment of the Apex Court in the case of Cipla Ltd. v. Maharashtra General Kamgar Union and Ors. reported in 2001 (I) CLR 754, particularly para 8 thereof. The said paragraph 8 reads as under :--

"8. Shri K.K. Singhvi, the learned senior Advocate appearing for the respondent, submitted that under Section 32 of the Act the Labour Court has the power to "decide all matters arising out of any application or complaint referred to it for the decision under any of the provisions of the Act." Section 32 would not enlarge the jurisdiction of the Court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the Industrial Tribunal or the Labour Court has no jurisdiction to deal with a particular aspect of the matter. Section 32 does not give such power to it. In the cases at hand before us, whether a workmen can be stated to be the workmen of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workmen in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act. In cases of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned elaborate consideration of the question as to relationship of employer-employee cannot be gone into. If at any time the employee concerned was indisputably an employee of the establishment and subsequently it is so disputed. Such a question is an incidental question arising under Section 32 of the Act. Even the case pleaded by the respondent-Union itself is that the appellant establishment had never recognised the workmen mentioned in Exhibit "A" as its employees and throughout treated these persons as the employees of the second respondent. If that dispute existed throughout, we think, the Labour Court or the Industrial Court under the Act is not the appropriate Court to decide such question, as held by this Court in General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. and Calico Printing Co. Ltd. and Ors. (supra), which view was reiterated by us in Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr., 2001 CLR 532 S.C."

The learned counsel in support of very same argument has further relied upon the judgment of the Bombay High Court in the case of Mazgaon Dock Limited vs. Engineering Workers Union, 2002 (HI) CLR page 61 and contended that the issue of the nature of work carried out requires an independent adjudication as and by way of reference under Section 10 of the Industrial Disputes Act, 1947 or in any other proceedings and it cannot be straightaway considered in the present case. I find in the present case that there is no dispute at all in respect of either the categories of the employees which are subject matter of the complaint and/or the nature of work carried out by them. In reply which has been filed by the petitioner-management before the Industrial Court, the averments made in the complaint about the nature of job and the work carried out by the said employees has been admitted. Relevant portion of the said reply in para 5 of the reply in effect admits the entire case pleaded by the respondent-union in their complaint.

"5. Without prejudice to what is mentioned above and with reference to para 3(a), I say it is true that my theatre is known as M/s Deepak Talkies and I employ as on today 4 permanent workmen and few casual, part time/show wise basis working workmen, hence it is wrong to say that I employ 20 employees as alleged. I say out of listed 12 workmen shown by the Union Sr. No. 1 Mrs. Vasanti Pawar is a part-time employee. She leave the theatre by 6.30 p.m. hence she is not a permanent employee. Sr. Nos. 2, 3 and 4 are the operators out of whom Sr. No. 2 Shri Adajania is working only as a part time in the evening and the rest of the 2 are working part time in the morning. Sr. No. 5, 6, 7, 8, and 9 are the door keepers out of whom Sr. No. 9 is working somewhere else and he works with the theatre on show basis hence he is not a permanent workman. The rest of the four door keepers are the part time door keepers. Sr. No. 10 is a watchman. He is not a full time employee of my theatre. He is a part lime employee and aged about 58 years. Sr. No. 11 and 12 are sweepers are the contracted employees. They had taken the job for sweeping in theatre on contract basis."

In the light of the aforesaid fact, I do not find any substance in the argument that the matter should have been separately agitated and jurisdiction under Section 28 vested in the Industrial Court ought not to have been exercised. I find from the plain reading of the award passed by Tambe J. that there is a clear and unequivocal finding in paragraph 150 (i) to (iii) which indicates that all the categories of employees which are being covered by the impugned order are in fact to be employed as full time employees and in light thereof I find no substance in the argument of the learned counsel for the petitioner-employer. The learned counsel for the petitioner-employer also relied upon a judgment of this Court in the case of Balmer Lawrie and Co. v. S.M. Limaye and Anr., reported in 7992 Lab.I.C. 205, particularly the observations of the learned Single Judge in paragraph 6, 8 and 14 of the said judgment. It is true that cases of unfair labour practice cannot be lightly inferred with as it leads to serious consequences so far as the petitioner-employer is concerned. To this proposition of law there is no dispute. However, in the light of the present case where there is a clear and unambiguous breach of the award passed by Tambe J. insofar as paragraph 150 (i) and (iii) is concerned, I do not find any reason to hold that the power conferred on the Industrial Court under the provisions of the MRTU and PULP Act, 1971 should not be exercised. I find that the Industrial Court was right in exercise of the power under the provisions of Section 28 of the said Act and accordingly the said submission is rejected.

10. Insofar as the contention of the respondent-union is concerned, firstly in respect of grant of minimum wages by the learned Industrial Court is concerned, and the complaint made in respect thereof that the learned Industrial Court ought to have granted them wages not on the basis of the minimum wages but on the basis of the Award is concerned, I find that the same cannot be accepted for the simple reason that the prayers which are made in the said complaint particularly the prayer which the learned Industrial Court has granted is based on the Payment of Minimum Wages Act, 1948 and thus the Industrial Court has accepted the prayers as set out in prayer Clause (d) of the said complaint and, therefore, no fault can be found with the order passed by the Industrial Court. It has been argued before me by the learned counsel for the respondent-union that in fact prayer (d) is not a final relief but the interim relief and in support thereof reliance has been placed on prayer (k) of the said complaint in which it has been stated as under :--

"(k) Pending hearing and final disposal of this complaint, Your Honour may be pleased to grant Interim/Ad-Interim Reliefs in terms of prayers (a), (d), (e) and (f) herein above;"

It has been further argued by the learned counsel for the respondent-union that in fact prayer (i) covers the wages on the basis of the Award and not on the basis of the Minimum Wages; and, therefore, the learned Industrial Court ought to have granted the wages as provided in the Award. On a plain reading of prayer (d), I do not find that the said prayer is for any interim relief. Reliance placed on prayer (k) for the aforesaid submission has no substance. I further find that prayer Clause (d) is not in the nature of interim relief but final relief and the learned Industrial Court has therefore granted the prayer as sought by the respondent-union. Once there is a specific prayer in the prayer Clause (d) which pertains to the minimum wages, it is not open for me to substitute the prayer of the learned counsel for the respondent-union by relying upon prayer (i) which is a general prayer disregarding the specific prayer which is considered and granted by the Industrial Court. I therefore find that there is no substance in the contention raised by the respondent-union concerning the grant of the order by way of minimum wages by the Industrial Court in the present case. It has been further argued insofar as the period of the date specified by the Industrial Court being 1-12-1998 is Concerned being the date on which relief has been granted by the learned Industrial Court, I find that that was the case of the respondent-union itself in paragraph 2 of the complaint in which it has been stated that the respondent is engaged in unfair labour practices under Item 1 (a) of Schedule II and Items 6 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971 on 1-12-1998. Thus, it was the case of the respondent-union that petitioner-management has been engaging in the unfair labour practices with effect from 1-12-1998 and has continued to engage in the same till date, and therefore, the learned Industrial Court in the impugned order has accepted the said date and has passed the order accordingly and granted the reliefs accordingly. In view thereof, I find that even in respect of this contention raised by the respondent-union, there is no substance.

11. This leads me to the last issue pertaining to the resignation of Adajania. It has been contended that Adajania never resigned from service in 1991 and, therefore, the finding of the Industrial Court in paragraph 23 of the order is erroneous and incorrect and requires to be interfered with by this Court. Firstly, I do not think any such exercise is permissible under Article 226 of the Constitution of India. In any event, I find that on the evidence led before the Industrial Court in the course of cross-examination it has come on record that said Mr. Adajania has resigned somewhere in 1991. Paragraph 4 of the said evidence of Smt. Shobha Shahdeo Shah, the representative of the petitioner-employer reads as under :--

"4. I know Shri Uttam Sawant. I do not know whether he is working with one doctor. It is not correct to say that Uttam Sawant was working only for one shift. I am not knowing Chandabai Shamlal. I know that Mr. Adajania had resigned somewhere in 1991. I do not know whether he had collected the provident fund dues."

12. In view of sufficient evidence being available on record, the finding of the learned Industrial Court insofar as it pertains to the said resignation of Adajania is concerned, is correct and no infirmity can be found therein. In the circumstances, I find that both the present petitions have no merit. The order passed by the Industrial Court dated 16-3-2001 requires no interference of any nature whatsoever and, therefore, I reject both the writ petitions being Writ Petition No. 339 of 2002 and Writ Petition No. 2623 of 2001 but there shall be no order as to costs.

13. The learned counsel for the petitioner-employer seeks stay of the order insofar as it pertains to Writ Petition No. 339 of 2002. However, I find from the interim order passed in Writ Petition No. 2623 of 2001 by His Lordship Hon'ble Mr. Justice Kakade, J. in which the statement of the petitioner-management has been recorded that they have completely implemented the award and it is further directed that in any event if it is not implemented, the petitioner-management shall implement the same within two weeks from the date of that order. I find that in view thereof, there is no question of giving any stay of this order.

14. It will be open for the respondent-union to adopt such proceedings as permissible in law for claiming the difference in the wages between minimum wages awarded by the Industrial Court and the scale fixed under Tambe Award for full time employees. At the same time it will be open for the petitioner-management to raise all such contentions that the respondents-union are not at ail entitled in law to initiate any such proceedings.

15. Certified copy expedited.

Parties be provided ordinary copy of this order duly authenticated by the Private Secretary of this Court.