M/S.Sanket Food Products Pvt.Ltd vs Prabhakar Asaram Bhalerao
2013 Latest Caselaw 370 Bom

                                    ( 1 )                  Writ Petition No.8482 of 2009




                                                                        
            IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD




                                              
                     WRIT PETITION NO.8482 OF 2009

    M/s.Sanket Food Products Pvt.Ltd.,




                                             
    Plot No.A-9/26, Additional MIDC Area,
    Jalna, through : The Manager                               PETITIONER
                                        




                                    
               VERSUS

    1.
                      
         Prabhakar Asaram Bhalerao,
         R/o.Vidyut Colony, Juna Jalna,
         Tq. And Dist. Jalna,
                     
    2.   Shantaram Rambhaji More,
         Shankar Nagar, Jalna,
         Tq. And Dist. Jalna,
      


    3.   Subhash Karbhani Shelke,
   



         R/o. Post : Padli, Tq.Badnapur,
         Dist. Jalna,

    4.   Nandu Bhimrao Jagdhane,





         R/o. Post : Nusan Wasahat, Juna Jalna,
         Tal. And Dist. Jalna,

    5.   Dilip Sheshrao Jadhav,





         R/o.Post : Nusan Wasahat, Juna Jalna,
         Tal. And Dist. Jalna,

    6.   Punjaram Pundalik Jarhad,
         R/o. Post : Badnapur, Tq.Badnapur,
         Dist. Jalna,

    7.   Ashok Ramrao Dabhade,
         R/o. Post : Bopteshwar,
         Tq.Badnapur, Dist.Jalna,




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                                           ( 2 )                       Writ Petition No.8482 of 2009




                                                                                   
    8.    Shivaji Panditrao Deshmukh,
          R/o.Bhoipura Shani Mandir, Juna Jalna,




                                                         
          Tq. And Dist. Jalna,

    9.    Vimala Dilip Jadhav,
          R/o. Post : Nusan Wasahat, Juna Jalna,




                                                        
          Tq. And Dist. Jalna,

    10.   Kamalabai Madhukar Mokde,
          R/o.Indira Nagar, June Jalna,




                                           
          Tq and Dist. Jalna.                                        RESPONDENTS
                          
    Mr.T.K.Prabhakaran, Advocate for petitioner.
    Mr.H.V.Patil, Advocate for respondent Nos. 1 to 10. 
                         
                                (CORAM : RAVINDRA V.GHUGE, J.)


                                    DATE : 18/12/2013
      


    JUDGMENT : 

1. Rule. Rule made returnable forthwith. Heard with consent of

learned Advocates for the respective parties.

2. By this petition, the petitioner seeks to challenge the judgment

and orders dated 21/05/2008 and 10/09/2009 delivered by the

Labour Court and Industrial Court in Complaint (ULP) No.80 of 2003

and Revision (ULP) No.12 of 2009, respectively.

3. Contention is that, a common closure notice dated 19/01/2013

( 3 ) Writ Petition No.8482 of 2009

and individual closure notices of the even date resulting in discharge

of 23 workmen as per the Industrial Disputes Act, 1947, was

challenged before the Labour Court by filing complaint (U.L.P.) No.

80/2003 by the respondents. Item 1(a) (b) (d) and (f) of Schedule IV of

the Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971 (Hereinafter referred to as State

Act) were invoked. Thrust of the complaint was that the Law of

Retrenchment was not complied with by the petitioner and

respondent workmen were terminated from employment by order

dated 19/01/2003 under the pretext of a closure. The factum of

closure was denied and it was contended by the respondents that the

factory still continues with its production or has indulged in

producing allied products.

4. The petitioner had resisted the complaint by filing its written

statement. Objection to the maintainability of the complaint was

specifically raised in the written statement itself in para No. 9 which

is at page No. 67 of the petition paper book. It reads thus :

"After the closure of the Factory, there is no industry

in operation where the complainant could be reinstated. In

( 4 ) Writ Petition No.8482 of 2009

absence of any industry qua the complainants, the instant

complaint is not maintainable. As such the complaint is to

be dismissed in limine."

An objection that a case of closure cannot be gone into by the Labour

Court under Item 1 of Schedule IV, does not appear to have been

specifically raised in the written statement of the petitioner.

5. In Ground No. 9(a) on page No. 6 of the petition memo, the

petitioner contends as under :-

"The Inferior Courts missed the point of law which

was raised before them, that closure cannot be a subject

matter of challenge under Item 1 of Schedule IV of the

MRTU & PULP Act, 1971. The cause of action of closure is

beyond the scope of the MRTU and PULP Act, and is not

justiciable within the jurisdiction of the Inferior Courts

created under the said Act."

6. The petitioner points out that issues were framed by the

Labour Court, Jalna on 06/09/2003 which are at page No. 69 of the

petition paper book and which read thus :

I. Whether are complainants prove that the respondent has

engaged in and has been engaging in unfair labour practice by

( 5 ) Writ Petition No.8482 of 2009

terminating the services of them w.e.f. 19.1.2003 ? II. Whether the order of termination dated 19/01/2003 is

shockingly disproportionate and illegal ?

III. Whether the complainants further prove that the respondents has

violated the provisions of section 25-F, 25-G and 25-H of the I.D.

Act, 1947 ?

IV. Whether the complainants are entitled for reinstatement in

service with continuity and full back wages ?

V. What order?

7. It is therefore contended that the issue as regards

maintainability of the complaint in light of its objection in para No. 9

of the written statement was neither framed nor was that objection

dealt with in the impugned judgment. So also, issue No. 2 referred

above which pertains to the proportionality of punishment, was

answered in the affirmative when it was nobody's case that the

workers have been awarded a shockingly disproportionate

punishment.

8. The petitioner submits that during the pendency of the

complaint, 13 complainants out of the 23 have withdrawn from the

proceedings and the 10 respondents in this petition are the

( 6 ) Writ Petition No.8482 of 2009

remaining complainants. The Labour Court has resorted to a roving

and fishing inquiry by collecting a report from the Government

Labour Officer (GLO) and by appointing a Court Commissioner, who

visited only the Government Labour Office and submitted his report.

Question is being raised as to how far could the Labour Court rely on

the report of the Government Labour Officer in the adjudication of a

complaint in as much as whether the Labour Court had jurisdiction

to inquire into the factum of closure.

9. The petitioner conceded that the evidence of the respondent

workers remained un-controverted due to the laxity on the part of the

petitioner. Neither, evidence was led nor arguments advanced on

behalf of the petitioner. However, documents like the closure notices,

payment of compensation in accordance with the scheme of the

Industrial Disputes Act, 1947 and the stoppage of electricity

consumption evidenced from the monthly bills were placed before the

Court. According to the petitioner, the Labour Court has exercised

jurisdiction not vested in it by Law and has resorted to investigating

the factum of closure.

( 7 ) Writ Petition No.8482 of 2009

10. The petitioner also contends that by the impugned judgment,

the Labour Court has arrived at a conclusion that the closure is

unbelievable and discharge of the respondent workmen needs to be

held as invalid termination. An astonishing direction of reinstatement

of respondent workers with continuity of service and 50% back wages

amounting to resumption of business has been issued by the Labour

Court.

11. The petitioner states that these errors have multiplied owing to

the judgment of the Industrial Court dated 10/09/2009 delivered in

Revision U.L.P.No. 12/2009 filed by the petitioner to challenge the

judgment of the Labour Court. The error committed by the Labour

Court was not corrected by the Industrial Court which has

mechanically dismissed the revision petition and upheld the

conclusions of the Labour Court.

12. The issues of maintainability of the complaint and jurisdiction

of the Labour Court were also not gone into in as much as the

Industrial Court on its own volition invoked section 25(O) under

Chapter V (B) of the Industrial Disputes Act, 1947 to conclude that

( 8 ) Writ Petition No.8482 of 2009

the Law of Closure was not followed by the petitioner. It is reiterated

that it was not the case of the respondents that Chapter V (B) of the

I.D.Act was applicable in the fact situation.

13. Learned Advocate Mr.H.V.Patil for the respondents has

strenuously and strongly supported the impugned judgments.

According to him, the case of the respondents squarely fell under

Item 1(b) and 1(d) of Schedule IV of the State Act and as such

discharge of the employees in the colourable exercise of the

employer's rights and for patently false reasons had been proved on

the strength of oral and documentary evidence. He further submits

that the Court Commissioner's Report coupled with the Government

Labour Officer's Report clearly indicates that the closure is an eye

wash and not genuine.

14. Packets of Pansupari and Gutkha, showing their manufacturing

date, which happens to be a date after the closure, was placed before

the Labour Court to prove that the manufacturing activity was

continued in the said factory of the petitioner. The false plea of the

petitioner was sufficiently exposed before the Labour Court.

( 9 ) Writ Petition No.8482 of 2009

15. An advertisement in a daily newspaper calling for applications

for appointment of Salesman by the same petitioner factory, as

contended by the respondents, was another clinching piece of

evidence.

16. According to him, all these aspects were duly considered and

properly appreciated by both the Lower Courts and the impugned

judgments do not require any interference as neither an illegality nor

any perversity can be made out from the said judgments. A false

case of closure can be gone into by the Labour Court U/I 1(b & d) of

Schedule IV.

17. He frankly stated that the issue as regards jurisdiction of the

Labour Court to deal with cases of closure and maintainability of the

complaint though raised by the petitioner, was not gone into by the

Labour Court either by framing an issue or considering those aspects

even in the absence of an issue. However, he added that the reasons

set out in the impugned judgment are an answer even to the said

objection.

( 10 ) Writ Petition No.8482 of 2009

18. With the assistance of the learned Advocates, I have gone

through the petition paper book. It clearly emerges that an objection

as regards the maintainability of the complaint was raised by the

petitioner which has not been dealt with by the Labour Court. This

aspect has also been lost sight of by the Industrial Court.

19.

In my considered view, in the face of an objection pertaining to

its jurisdiction, the Labour Court was bound to decide that issue.

Having not done so, the impugned judgment would rest on an

assumption that the Labour Court has exercised jurisdiction vested

in it by Law.

20. Jurisdiction can not be acquired either on assumptions or on

presumptions. In view of a specific objection raised, it was

incumbent upon the Labour Court to deal with the said issue so as

to arrive at a conclusion that it had jurisdiction to entertain the

complaint. If the issue was answered to establish jurisdiction, the

Labour Court would have been justified in arriving at its conclusions

like those found in the impugned judgment. Having not dealt with

the said issue, the impugned judgment of the Labour Court deserves

( 11 ) Writ Petition No.8482 of 2009

to be set aside. Needless to state, on the same premise, the

judgment of the Industrial Court is set aside.

21. In the light of the above, the impugned judgments of the

Labour Court dated 21/05/2008 in complaint U.L.P. 80/2003 and

the judgment of the Industrial Court dated 10/09/2009 in Revision

U.L.P.No. 12/2009 are quashed and set aside.

22. Ends of justice would be met with the following directions :

(a) Complaint U.L.P.No. 80/2003 is relegated back to the Jalna

Labour Court.

(b) An issue as regards the maintainability of the complaint in

light of the specific pleading set out by the petitioner in para

No. 9 of the written statement be framed. All other issues be

maintained unless any party desires addition of issues.

(c) The issue as regards jurisdiction be dealt with by the Labour

Court along with the other issues.

(d) both the parties are at liberty to lead oral and documentary

evidence in relation to the newly framed issue in as much as

the respondent herein is at liberty to file a counter say to the

preliminary objections in order to place its pleadings on record.

(e) Oral and documentary evidence already adduced before the

Court, may be considered and utilized by the Labour Court.

( 12 ) Writ Petition No.8482 of 2009

(f) Liberty to the petitioner to cross examine the respondent's

witnesses.

(g) The petitioner is also at liberty to lead its oral and

documentary evidence on all issues and the respondent shall

have the liberty to cross-examine the said witnesses.

(h) Both the parties shall fully co-operate with the Labour Court,

Jalna in the expeditious hearing and disposal of complaint

(ULP) No.80/2003 so as to enable the Labour Court to decide

the complaint as expeditiously as possible and preferably

within a period of 9 months.

(i) R & P be sent back to the Labour Court, Jalna forthwith.

(j) Original complainant shall deposit process fees within a period

of four weeks from today in the Labour Court.

(k) The period of nine months for deciding the complaint shall be

from the date of issuance of notice.

(l) The Labour Court shall decide the complaint afresh on its own

merits without being influenced by the observations made in

this judgment.

23. The writ petition is partly allowed. Rule is made absolute in

the above terms. No order as to costs.

( RAVINDRA V.GHUGE, J.)

khs/Dec.2013/wp8482-09