Indian Coffee Workers Co-Op. ... vs Albert S/O. Tavid And Others
2016 Latest Caselaw 5299 Bom

    907-WP-5671-15                                                                    1/14


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                           NAGPUR BENCH, NAGPUR.




                                                        
                             WRIT PETITION NO.5671 OF 2015


    Indian Coffee Workers Co-op. Society
    Ltd. Indian Mutual Building, Sadar, 




                                                       
    Nagpur, Thr. its Secretary.                            ... Petitioner. 

    -vs- 




                                            
    1.  Albert s/o Tavid,
         Aged about 43 years, Occ. Nil. 
                                     
         R/o 190, Jaihind Nagar, 
         C/o K. G. Surkar, Nagpur. 
                                    
    2.  Dinakaran s/o Shankaran
         aged about 44 years, Occ.Nil, 
         R/o 112, Mata Mandir Road, 
         Gokulpeth, Nagpur. 
              


    3.  Thankachan Kurian,
           



         aged about 44 years, 
         R/o 190, Jaihind Nagar, 
         C/o K. G. Surkar, Nagpur. 





    4.  Manikraj Chitayan,
         aged about 44 years, 
         resident of 190 Jaihind Nagar, 
         C/o K. G. Surkar, Nagpur.  





    5.  Industrial Court, Nagpur.                          ... Respondents. 
     

    Shri M. R. Pillai, Advocate for petitioner. 
    Shri J. L. Bhoot, Advocate with Shri A. J. Bhoot, Advocate for respondent 
    Nos.1 to 4. 

    CORAM  :  A.S.CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD : JULY 28, 2016.

DATE ON WHICH JUDGMENT IS PRONOUNCED : SEPTEMBER 16, 2016.

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    Oral Judgment : 




                                                                  

Rule heard finally with consent of learned counsel for the parties.

The question that arises for consideration in this writ petition is

whether a complaint under Section 28 of the Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short,

the Act of 1971) under Schedule IV Item 9 is maintainable for a declaration

that non-compliance of the judgment in an earlier complaint filed under

Section 28 of the Act of 1971 would amount to an unfair labour practice.

2. The facts giving rise to the present writ petition can be briefly

stated thus :

The respondent Nos.1 to 4 were in employment with the

petitioner. Their services came to be terminated by an order dated

30/11/1992. This act of termination was challenged by them by filing

separate complaints under Section 28 of the Act of 1971. By a common

judgment dated 24/09/1996, the Labour Court allowed all the complaints

and held that by terminating the services of the said respondents, the

petitioner had engaged in an unfair labour practice. The Labour Court

therefore directed reinstatement of the said respondents with 50% back-

wages from 01/12/1992 till their reinstatement. This order of reinstatement

attained finality as the challenge raised thereto by the petitioner was not

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successful. After said order became final, the petitioner did not reinstate the

said respondents. Hence on 18/06/2015 the said respondents filed

Complaint U.L.P. No.106/2015 stating therein that failure to comply with the

earlier judgment amounted to breach of Item 9 to Schedule IV of the Act of

1971. Hence a prayer for reinstatement with back-wages was made.

3. The petitioner filed its written statement and opposed the

complaint. A plea was raised that the complaint was not maintainable under

Item 9 to Schedule IV of the Act of 1971 on the ground that order passed by

the Labour Court in the earlier complaint did not constitute an agreement,

award or settlement. The petitioner also filed an application for dismissal of

the complaint on the same ground. After hearing the counsel for the parties,

the Industrial Court rejected the application for dismissal of the complaint on

the ground that an interim order or final order passed by the Labour Court,

Industrial Tribunal or National Industrial Tribunal determining the industrial

dispute would amount to an award. Being aggrieved, the petitioner has

challenged the aforesaid order.

4. Shri M. R. Pillai, the learned counsel for the petitioner submitted

that the entire basis for filing the complaint in question was the earlier order

passed by the Labour Court on 24/09/1996 in the complaints filed under

Section 28 of the Act of 1971. According to him, the provisions of Item 9 to

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Schedule IV of the Act of 1971 would be attracted only if there was a failure

to implement any award, settlement or agreement. He submitted that it was

the case of the respondent Nos.1 to 4 that the earlier order passed by the

Labour Court was an award and hence on failure to implement the same, a

case of commission of unfair labour practice was made out. According to

him the expression "award" was not defined in the Act of 1971. The

definition of the expression "award" as per provisions of Section 2(b) of the

Industrial Disputes Act, 1947 (for short, the Act of 1947) cannot be taken

into consideration while considering the provisions of Item 9 to Schedule IV

of the Act of 1971. The provisions of Section 2(b) of the Act of 1947 have to

be confined to the provisions of the said Act as said expression as defined

could not be relied upon in the present case. In support of his submissions

the learned counsel placed reliance upon the judgments of learned Single

Judge in 1997 II CLR 1146 Divisional Controller, Maharashtra State Road

Transport Corporation, Akola v. Syed Shabir Jani s/o Syed Alisahed,

2009-III-LLJ-401(Bom) A. R. Sulphonates Pvt. Ltd. v. Maharashtra

Mathadi & General Kamgar Union and Anr. and 2010(1) Mh.L.J. 173

Zim Laboratories Ltd. Nagpur vs. Nagpur General Labour Uinion,

Kalmeshwar. It was therefore submitted that the Industrial Court erred in

not dismissing the complaint especially when it had no jurisdiction to

entertain the same.

907-WP-5671-15 5/14

5. On the other hand, Shri J. L. Bhoot, the learned counsel for the

respondent Nos.1 to 4 supported the impugned order. He submitted that

the complaint as filed could not be dismissed at an interlocutory stage

without first determining whether any unfair labour practice had been

committed or not. According to him, the aspect whether there was no failure

to implement the award in question in the form of the judgment of the

Labour Court in the original complaints was a matter to be decided after the

parties had led evidence. He submitted that the Industrial court rightly

refused to dismiss the complaint on the grounds on which the same was

sought to be dismissed. He submitted that the adjudication of the present

nature at an interlocutory stage has been frowned upon by the Honourable

Supreme Court and in that regard he placed reliance upon its judgment in

AIR 1984 SC 153 D. P. Maheshwari v. Delhi Administration. He also

placed reliance upon the decision of learned Single Judge in 1995 (2)

Mh.L.J. 342 Waman Pundlikrao Deshmukh vs. Shivaji Agriculture

College, Amravati, Thr. its Principal. By relying upon the judgment of the

Honourable Supreme Court in 2015 (1) Bom. LC 341 Cimco Birla Ltd. vs.

Rowena Lewis, it was urged that in somewhat similar circumstances, a

complaint filed by the aggrieved workman had been entertained. He

therefore submitted that there was no case to interfere in the writ petition.

6. I have heard the respective counsel for the parties at length and I

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have given due consideration to their respective submissions. The

undisputed facts are that the initial complaints filed by the respondent Nos.1

to 4 challenging the order of termination dated 01/12/1992 were decided on

24/09/1996 in their favour. The order of reinstatement and payment of 50%

back-wages has attained finality. This order was passed in the complaint

filed under Section 28 of the Act of 1971. The subsequent complaint again

filed under Section 28 of the Act of 1971 is on account of non-compliance by

the petitioner with the earlier orders. The aforesaid facts therefore indicate

that the initial adjudication was under Section 28 of the Act of 1971 and the

subsequent complaint has been filed under Item 9 to Schedule IV of the Act

of 1971 on account of failure to comply with the earlier order.

7. A brief reference to the averments in the present complaint would

be useful to answer the question as framed. In paragraph 6 of the said

complaint, it has been pleaded as under :

' That the judgment passed by the learned labour court amounts to agreement, award and settlement and the respondent is bound to

comply the same. It is the duty of the respondent to comply the order passed by the Labour court and in not complying with the order passed by the Labour court, the respondent has committed breach of the item No.9 of Schedule IV to the Maharashtra Act No.1 of 1972. '

The prayer made in this complaint reads as under :

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' Declare that the respondent is engaged in unfair labour practice

covered by item No.9 of Schedule IV to the Maharashtra Act No.1 of

1972, in not complying with the order passed by the Labour Court, Nagpur on 24/09/1996. '

8. The expression "award" has not been defined under the Act of

1971. As per the provisions of Section 3(18) of the Act of 1971, the words

and expressions used in the Act of 1971 and not defined therein or in the

Bombay Industrial Relations Act, 1946 shall have the meanings assigned to

them by the Act of 1947. Section 3(12) defines the expression "order" to

mean an order of the Industrial or Labour Court. Under Section 28(1) of the

Act of 1971, a complaint can be filed before the competent Court raising a

grievance regarding any unfair labour practice being engaged by the

employer. Section 28(7) of the Act of 1971 contemplates decision of the

Court to be in writing and in the form of an order. Under section 28(8) of

the Act of 1971 such order has to be published in the manner prescribed.

Under The Maharashtra Recognition of Trade Unions & Prevention of Unfair

Labour Practices Rules, 1975 especially Rules 25 and 26 thereof, the manner

in which the order passed under Section 28(8) of the Act of 1971 is to be

published and its report has to be forwarded has been stipulated. Similarly,

under Industrial Court Regulations, 1975 Regulation No.109 also prescribes

the manner in which such order has to be published and its copy has to be

forwarded to the concerned Authority. Under Section 30(1) (b) of the Act

907-WP-5671-15 8/14

of 1971 the Industrial Court or the Labour Court can while deciding the

complaint issue directions to the concerned person to cease and desist from

committing an unfair labour practice. This has to be to effectuate the policy

of the Act of 1971. Under Section 48(1) of the Act of 1971, failure to

comply with any order of the Court under Section 30(1) or (2) of the Act of

1971 has been made punishable on conviction. Thereafter under Section 59

of the Act of 1971 if any proceedings with regard to any matter falling within

purview of the Act of 1971 is instituted, then no proceedings at the same

time can be entertained in respect of the same matter under the Act of 1947.

From the aforesaid scheme of the Act of 1971, it is clear that the

expression "order" has been specifically used in the Act of 1971 in

contradistinction with the expression "award".

9. If the relevant provisions of Act of 1947 in that context are noted,

it can be seen that Section 2(b) defines "award" to mean an interim or final

determination of any industrial dispute or of any question relating thereto by

any Labour Court, Industrial Tribunal or National Industrial Tribunal.

Section 10A(1A) of the Act of 1947 refers to an award passed under an

arbitration agreement. Section 11(9) and (10) refers to the execution of an

award made by the Labour Court or Industrial Tribunal or National Industrial

Tribunal. Section 16 then refers to the manner in which the award has to be

prepared and signed. Section 17 refers to publication of such award. The

907-WP-5671-15 9/14

provisions of Section 17A refer to commencement of the award while Section

17B of the Act of 1947 empowers the Court to pay full wages last drawn by a

workman in case the order of reinstatement is challenged by the employer.

Section 18 refers to the persons on whom the award is binding while Section

19 refers to the period of operation of an award.

From the aforesaid it can be seen that the expression "award" has

a specific conotation under the Act of 1947.

10. If the relevant provisions of the Act of 1971 in the context of an

order passed under the Act of 1971 is considered along with the provisions

of the Act of 1947 in relation to passing an award under the Act of 1947, it

will be clear that the expression "award" by Section 2(b) of the Act of 1947

would be distinct from an "order" passed under the Act of 1971. Both these

expressions have different conotations and they operate in separate fields.

Hence, under Item-9 to Schedule-IV of the Act of 1971, the failure to

implement award, settlement or agreement would mean a failure to

implement such award, settlement or agreement as contemplated by the Act

of 1947. Failure to implement an order passed under the Act of 1971 cannot

by itself be said to be covered by Item-9 to Schedule-IV of the Act of 1971.

11. In Divisional Controller, M.S.R.T.C. Akola (supra) learned Single

Judge considered the question as to whether in a writ petition filed by an

907-WP-5671-15 10/14

employer challenging the order of reinstatement passed under the Act of

1971, the employee could maintain an application under Section 17-B of the

Act of 1947 for seeking last drawn wages. After considering various

provisions of both the Acts, it was held that an order passed under the Act of

1971 could not be treated as an award under the Act of 1947 on the basis of

which relief under Section 17-B of the Act of 1947 could be prayed for.

This judgment has been referred to by learned Single Judge in Zim

Laboratories Ltd. Nagpur (supra) and it has been observed that there can be

no debate with the proposition that the order passed by the Industrial Court

under the Act of 1971 would not amount to an award. Reference can also be

made to the judgment of learned Single Judge in Jugilal Laxminarayan

Yadav and another vs. State of Maharashtra and others, 1991 MhLJ 318.

It was held therein that an interim order passed on an application under

Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 could not

be termed either as a settlement or award for the purposes of invoking the

provisions of Section 33C(1) of the Act of 1947. These decisions fortify the

conclusions recorded herein above.

12. The learned counsel for respondent Nos.1 to 4 placed heavy

reliance on the judgment of the Honourable Supreme Court in Cimco Birla

Ltd. (supra) by submitting that even an order passed under the Act of 1971

had been treated as an award. A careful reading of the entire judgment does

907-WP-5671-15 11/14

indicate that the Honourable Supreme Court has referred to the order passed

under the Act of 1971 as an award. However, such description by itself does

not further the case of the respondent Nos.1 to 4. It is not the ratio of the

aforesaid decision that the order passed under the Act of 1971 would be an

award under the Act of 1947. Similarly, the reliance placed on the

dictionary meaning of the word 'award' is also misplaced in view of the

provisions of Section 3(18) of the Act of 1971.

13. Further submission made on behalf of the respondent Nos.1 to 4

that there cannot be piece-meal adjudication of the industrial dispute by

entertaining a challenge on a preliminary issue also does not deserve

acceptance in the facts of the present case. The question raised in the

present matter goes to the root of the matter and the aspect of jurisdiction

being exercised by the Industrial Court. A plain reading of the objection filed

before the Industrial Court reveals that it is sought to be demonstrated that

the complaint as filed by invoking Item-9 to Schedule-IV of the Act of 1971 is

itself not maintainable in absence of any award, settlement or agreement

under the Act of 1947. Such preliminary objection can be entertained

especially when the same is based on a plain interpretation of the relevant

provisions without there being any disputed questions. If on plain reading of

the complaint itself, it is being urged that the complaint was not tenable and

such objection as regard lack of jurisdiction being one that goes to the root of

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the matter, such objection in these facts can be entertained by the Industrial

Court. Moreover, this conclusion has been arrived at on the basis of

judgments holding the field.

In D. P. Maheshwari (supra), the management raised a

preliminary objection to the maintainability of the reference made under

Section 10(1) of the Act of 1947. The same was tried as a preliminary issue

with both sides leading evidence. It is in that context that it was observed by

the Honourable Supreme Court that all issues arising have to be decided

without trying some of them as preliminary issues. In Waman Pundlikrao

Deshmukh (supra) the Industrial Court without permitting the complainant

to lead evidence and without making any inquiry whatsoever dismissed the

complaint on the preliminary objection raised by the non-applicant therein.

In the present case the objection to the jurisdiction of the Industrial Court is

based on the reliefs sought in the complaint on the ground that the same

cannot be granted by said Court for want of jurisdiction. In this view of the

matter therefore, the ratio of the decisions in D. P. Maheshwari (supra) and

Waman Pundlikrao Deshmukh (supra) cannot be made applicable to the

facts of the present case.

14. In the light of aforesaid discussion, the impugned order dated

04/09/2015 passed by the learned Member of the Industrial Court is not

found to be sustainable in law. The complaint filed under Item 9 of Schedule

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IV to the Act of 1971 for seeking implementation of an earlier order passed

by the Labour Court under the Act of 1971 is not maintainable.

15. Accordingly, the order dated 04/09/2015 passed below Exhibit-

C-2 is set aside. The application moved by the petitioner seeking dismissal of

the complaint is allowed. Complaint ULP No.106/2015 stands dismissed for

want of jurisdiction. It is clarified that the remedy available to the

respondent Nos.1 to 4 to seek relief as per the order passed in Complaint

Nos.770/1992 to 773/1992 dated 24/09/1996 is kept open.

Rule is made absolute in aforesaid terms with no order as to costs.

                 
              



                                                                        JUDGE






    Asmita  





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                     -:  C E R T I F I C A T  E  :- 




                                                          

" I certify that this Judgment/order uploaded is a true and

correct copy of the original signed Judgment/order."

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Uploaded on :

16/09/2016