The Executive Engineer vs Duryodhan
2010 Latest Caselaw 99 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                           NAGPUR BENCH, NAGPUR




                                                      
                LETTERS PATENT APPEAL NO. 496 OF 2010 IN
                    WRIT PETITION NO. 5600 OF 2009 (D)




                                                     
                                            
    1. The Executive Engineer,
        Bhandara Irrigation Division,
        Gondia, Tah. & District Gondia.
                              
    2. Sub-Divisional Engineer,
       Irrigation Sub-Division, Tumsar,
                             
       Tahsil Tumsar, District Bhandara.              ........       APPELLANTS


          // VERSUS //
            
         



    Duryodhan s/o. Dheklal Nagalwade,
    r/o. Chandrapur, P.O. Sihora,
    Tah. Tumsar, District. Bhandara.                   ........     RESPONDENT





-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                 Mr. S. S. Wandile, AGP for Appellants.
                 Mr. M.L.Bhure, Adv. for Respondent.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=





                                           Coram: J. P.DEVADHAR AND
                                                  A. B. CHAUDHARI, JJ.

                                           Date : 27.10.2010.




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JUDGMENT       (Per A. B. Chaudhari, J)

1. Heard.

2. Admit.

3. Mr. M. L. Bhure, Adv. waives service on behalf of the

Respondent.

4. Taken up for final disposal with the consent of the learned

Counsel for the rival parties.

5.

The sole respondent/employee had filed a complaint u/s. 28 of

the Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and

PULP Act) challenging in a Complaint (ULP) No.2 of 1993 the alleged oral

termination of his services from 27th October, 1990. By judgment and

order dt. 10.1.2002, the said complaint was partly allowed and the

respondent/employee was directed to be reinstated without backwages.

That judgment came to be challenged in a revision before the Industrial

Court by the appellant and the Industrial Court, after setting aside the

said judgment, remanded the proceedings to the Labour Court for fresh

hearing and disposal of the complaint. After remand, the complainant

amended his complaint and inserted a ground in the complaint that he

was entitled to be regularised in service in accordance with the Kalelkar

Settlement because he had completed five years of continuous service

and the Kalelkar Settlement in his case was not implemented and for that

purpose, he prayed for reinstatement as well before the Labour Court.

The Labour Court, after hearing the complaint afresh after remand,

returned a finding against the respondent/employee holding that he did

not complete 240 days in one year of continuous service and he did not

produce the said Kalelkar Settlement before the Court and had also failed

to show that the said Award applied in his case. Since the Court held that

the respondent/employee did not complete 240 days of continuous

service, it did not find any violation of Section 25-F of the Industrial

Disputes Act. As to maintenance and publication of seniority list, it found

that, except vague say of the complainant that the persons junior to him

were retained in service, there was no material to assume violation of

provisions of Section 25-G of the Industrial Disputes Act. Resultantly, the

Labour Court dismissed the complaint in entirety.

6. The respondent/employee filed a revision before the Industrial

Court against the said Judgment and Order dt. 10.1.2002 passed by the

Labour Court dismissing his complaint vide Revision (ULP) No.79 of 2007.

In revision, the Industrial Court did not vary the finding recorded by the

Labour Court that he did not complete 240 days in one year of continuous

service, but found that the Kalelkar Settlement was applicable in the case

of respondent. It further found that the copies of Wage-cum-Attendance

extract filed on record by the appellants right from 1979 till 1990, itself

showed that the respondent/employee worked during those years. It is on

the basis of said chart, the Industrial Court got impressed about the

number of years in which the respondent/employee had performed the

work and therefore, held that the Kalelkar Settlement was required to be

implemented in the case of respondent, he having worked for more than

five years and thus, found that the appellant committed unfair labour

practice by not implementing the Kalelkar Settlement in the case of

respondent. The Industrial Court, therefore, partly allowed the revision

directing the appellant to implement the Kalelkar Settlement in the case

of respondent after holding that the appellant indulged in unfair labour

practice under Item 9, Schedule IV of the MRTU and PULP Act and further

directed the appellant to reinstate him in service and calculate monetary

benefits for making payment to him. The learned Single Judge upheld the

order of the Industrial Court, but made a slight modification regarding

calculation of arrears. Hence, this appeal by the appellants.

Consideration :

7. We have heard the learned Counsel for the rival parties and we

have gone through the entire record, so also the impugned judgments.

Since, in our view, jurisdictional error has been committed by the

Industrial Court in the present matter, it is necessary to have a look at the

various provisions of the MRTU and PULP Act.

8. Section 5 of the MRTU and PULP Act and in particular, clause (5)

(d) reads thus :

"5. Duties of Industrial Court :

It shall be the duty of the Industrial Court, -

          (a)       .........
          (b)       .........
          (c )      ..........
          


          (d)       to decide complaints relating to unfair labour
       

practices except unfair labour practices falling in Item I of Schedule IV;"

9. Section 7 reads thus :

" 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."

10. Entries 1 and 9 in Schedule - IV read thus :-

" SCHEDULE - IV.

General Unfair Labour Practices on the part of Employers:

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;

(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 employees, so as to amount to a shockingly disproportionate punishment.

2. ......

3. .......

4. ........

5. ........

6. ........

7. .......

8. .......

9. Failure to implement award, settlement or agreement.

11.

From perusal of the above provisions, it is clear that the Labour

Court has been invested with power to try the complaint whichs fall within

Item No.1 (a to g) relating to discharge or dismissal of employees and

nothing more under Schedule IV of the MRTU and PULP Act. It is further

clear from the reading of Section 5(d) that it is the Industrial Court which

alone has been conferred with jurisdiction to try the complaint in relation

to Item No.9, Schedule IV of the MRTP and PULP Act. In other words, in

relation to complaint where there is a grievance about failure to

implement award, settlement or agreement under Item 9, the Industrial

Court exercises its original jurisdiction of entertaining and trying a

complaint u/s. 28 of the Industrial Disputes Act. Similarly, the Labour

Court exercises its original jurisdiction in respect of the complaints

brought before it in the matter of discharge or dismissal from services of

employees under Item 1(a to g). Now we quote Section 44 of the MRTU

and PULP Act, which reads thus :

"44.Industrial Court to exercise superintendence

over Labour Court :

The Industrial Court shall have superintendence over all Labour Courts and may, -

         (a)       call for returns;
                           
         (b)       make and issue general rules and prescribe

forms for regulating the practice and procedure of

such Courts in matters not expressly provided for by this Act and in particular, for securing the expeditious disposal of cases;

( c) prescribe form in which books, entries and

accounts shall be kept by officers of any such Courts;

(d) settle a table of fees payable for process issued by a Labour Court or the Industrial Court.

12. Section 44, thus, provides for power of superintendence to the

Industrial Court over the Labour Court. It, thus, acts as a superior Court

over the labour Court for exercising the said power of superintendence,

which, in common parlance, is called as 'revisional jurisdiction'. Thus, the

orders made by the Labour Court deciding the complaints finally in

relation to Item Nos. 1(a to g) could be put to challenge before the

Industrial Court by way of revision u/s. 44 of the Industrial Disputes Act.

13. When there is a grievance about non-implementation of award,

settlement or agreement and in the instant case, about non-

implementation of Kalelkar Award, complaint u/s. 28 would obviously lie

before the Industrial Court in its original jurisdiction and by no stretch of

imagination, such a grievance could be entertained by a Labour Court

u/s.28 of the Act or by the Industrial Court in its revisional jurisdiction u/s.

44 of the MRTU and PULP Act. In the instant case, that is what has

exactly happened.

14. The respondent/employee set up his case within the meaning of

Item No.9, Schedule IV by amending the complaint before the labour

Court and made a grievance that, in his case, Kalelkar Settlement was not

being implemented and he was, thus not being brought on regular

establishment as per the said Kalelkar Settlement. It is clear that the

jurisdiction to implement Kalelkar Settlement, which obviously falls under

Item No.9, Schedule IV of the MRTU and PULP Act, does not lie with the

Labour Court, but that jurisdiction lies with the Industrial Court in its

original jurisdiction u/s. 28 in a complaint. The Industrial Court, however,

In exercise of its revisional jurisdcition in the instant case, recorded a

finding that the Kalelkar Settlement was not being implemented and

therefore, the appellants committed unfair labour practice within the

meaning of Item No.9 and also issued directions accordingly; which, in our

opinion, are completely without jurisdiction. The Industrial Court, thus,

clearly acted without jurisdiction in doing so. We, therefore, reverse the

finding of the Industrial Court on that issue.

15. We further find from the record that the law laid down by the

Hon'ble Supreme Court in the recent point of time in the matter of burden

of proof to establish completion of 240 days has not at all been taken

into consideration. Further, the Industrial Court, after quoting the extract

from wage-cum-attendance register, merely stated that the

respondent/employee worked from 1979 to 1990. But the Industrial Court

clearly ignored the fact that the chart itself showed the number of

working days and the working days were from 4 days to 28 days only in

each year. We quote the said extract in the chart thus;

Exh.No. Year Sr.No. No. of working days 53 1979 14 11 64 1980 41 24 55 1980 30 12 74 1981 32 23

67 1981 7 23 76 1091 8 23

77 1981 47 10 78 1982 20 27

79 1982 11 28 80 1982 6 27 81 1982 4 27

82 1982 4 26 83 1982 2 27 85 1982 6 27 86 1982 4 27

87 1982 33 ig 13 88 1982 9 26 89 1982 10 26

92 1983 8 2 96 1983 2 16 97 1983 2 8 107 1984 9 24

108 1984 9 22

109 1984 7 6 130 1986 5 21 134 1986 9 4

139 1988 2 27 145 1989 13 3 154 1990 24 4

16. Thus, the Industrial Court failed to apply its mind to this

material aspect regarding number of working days and abruptly, came to

a conclusion that even if the employee worked for about four or five or 28

days in a year and continued to work for few years, it will be presumed

that he has worked continuously. On facts, that is absolutely a wrong

approach. Insofar as violation of Section 25-G is concerned, the Industrial

Court has not recorded any finding. The question Whether or not the

pleadings and evidence tendered by the respondent/employee was

sufficient to arrive at a finding about violation of Section 25-G has not at

all been scanned by the learned Industrial Court. To our mind, the

evidence about it is most unsatisfactory and with the said evidence, it is

not possible to come to a conclusion about violation of Section 25-G

merely because the seniority list was not maintained and published. It is

not possible to make a straight-jacket formula that if the seniority list is

not maintained or published, same must automatically result into

violation of Section 25-G of the Industrial Disputes Act. Something more

is required to come to such conclusion. We, thus, find that the impugned

orders made by the Industrial Court as well as the learned Single Judge

will have to be set aside as the same are faulty in the light of the above

discussion and in the interest of justice, the proceedings will have to be

remitted to the Labour Court.

17. We again make it clear that the Labour Court shall not enter

into the question of implementation or otherwise of Kalelkar Award in

exercise of its jurisdiction u/s. 7 of the MRTU and PULP Act. We, therefore,

reserve liberty in favour of the respondent/employee, if he so desires and

if it is permissible in law, to approach the appropriate Industrial Court in

case he has a grievance about non-implementation of Kalelkar Award. In

the result, we make the following order.

// O R D E R //

The Letters Patent Appeal is allowed.

The impugned Judgments of the Industrial Court

(in Revision (ULPA) No.79 of 2007, dt. 26.6.2008) and

the learned Single Judge (in Writ Petition No. 5600 of

2009, dt. 1.4.2010) are quashed and set aside.

The proceedings of Complaint (ULP) No.2/93 are

remitted to the Labour Court, Bhandara for fresh

disposal in accordance with law in the light of

observations made in the present judgment. The

Labour Court shall take up the matter being old and

decide the same as expeditiously as possible and in

any case, within six months from the date of receipt

of writ of this Court.

No order as to costs.

                 JUDGE                           JUDGE




                                    
jaiswal