Bombay High Court
Manisha D. Parmar vs M/S United Spirits Ltd on 22 September, 2016
Bench: R.M. Savant
(906)-wp-8675-16.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8675 OF 2016
Manisha D. Parmar ]
Hindu, Adult, Indian Inhabitant, ]
Residing at Room No.55, Shahid ]
Bhagat Singh Road, Lucky House ]
Fort, Mumbai-1. ]..Petitioner
Versus
M/s. United Spirits Ltd.
By its Secretary, Regional Office
ig ]
]
Piramal Towers, ]
Peninsula Corporate Park, ]
Ganpatrao Kadam Marg, ]
Lower Parel (West), Mumbai-13 ]..Respondent
Mr. Devang D. Parmar for the Petitioner.
Mrs. N. R. Patankar a/w Mr. V. P. Sawant, Mr. Prabhakar Jadhav for
the Respondent.
CORAM : R. M. SAVANT, J.
DATE : 22nd SEPTEMBER, 2016
ORAL JUDGMENT
1 Rule. Having regard to the nature of the challenge raised
made returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the
order dated 29.01.2016 passed by the Learned Member of the Industrial
Court, Mumbai. By the said order, the Revision Application (ULP) No.92
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of 2015 came to be allowed and resultantly, the order dated 05.06.2015
passed by the Learned Judge of the Labour Court came to be set aside.
Having regard to the purport of the impugned order, it would have to be
said that though the Revision Application was allowed, the reliefs which
were granted, were against the Petitioner herein.
3 The facts giving rise to the filing of the above Petition can in
brief be stated thus :-
The Petitioner herein was appointed as a Confidential
Secretary in the Respondent company with effect from 01.06.2013. It
seems that she was thereafter appointed to the post of MIS (Management
Information System). The Respondent termed her appointment as
promotion, whereas the Petitioner denies the same. It seems that the
Petitioner's services came to be terminated with effect from 15.12.2014
on the ground that the Petitioner was not upto the mark in her work. The
termination of the Petitioner's services resulted in the Petitioner invoking
the provisions of the MRTU & PULP Act, 1971 (For short "the said Act")
by filing Complaint (ULP) No.6 of 2015 under items 1(a), (b), (d), (f)
and (g) of the said Act. The sum and substance of the case of the
Petitioner was that she was a workman and that her services have been
terminated without following any procedure and especially Section 25F
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of the Industrial Disputes Act, 1947. In the said Complaint, the Petitioner
filed an application for interim relief Exh.U-2. By way of interim relief,
the Petitioner sought reinstatement in service till the decision in the main
Complaint.
4 In so far as the Respondent is concerned, it filed its reply
vide Exh.C-4. The Respondent tried to justify the termination of the
services of the Petitioner. The Respondent admitted that no enquiry was
held, but that the Respondent would prove the misconduct in Court. In so
far as the interim relief sought was concerned, the Respondent opposed
the grant of such relief on the ground that granting the said relief would
be like granting the final relief sought in the Complaint without a trial.
5 The Learned Judge of the 4th Labour Court, Mumbai,
considered the said application Exh.U-2 filed by the Petitioner for interim
relief. The Learned Judge adverted to the respective cases of the parties,
wherein as indicated above, it was the case of the Petitioner that her
services have been terminated without following the procedure, whereas
it was the case of the Respondent that the services of the Petitioner were
terminated for a misconduct and that the said misconduct would be
proved by the Respondent in Court. The Learned Judge also considered
the judgments cited on behalf of the Respondent on the said aspect of the
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employer being permitted to lead evidence in Court and on the aspect of
whether interim relief in the nature of final relief could be granted whilst
considering an application for interim reliefs. The Learned Judge held
having regard to the said fact such a relief could not be granted.
However, considering the fact that the services of the Petitioner were
terminated without following the procedure, came to a conclusion that
though the relief of reinstatement pending the Complaint could not be
granted, the application Exh.U-2 filed by the Petitioner was required to be
partly allowed and accordingly allowed the said application by directing
the Respondent to deposit wages from month to month in the Labour
Court pending the Complaint. The operative part of the order dated
05.06.2015 passed by the Labour Court reads thus :-
"1. Application is partly allowed.
2. Application for reinstatement of the complainant at
interim stage is rejected.
3. The respondents are directed to deposit every months'
salary of the complainant in this court since June 2015 till
the decision of main complaint or until further orders.
4. The parties are not at liberty to withdraw any amount till
final decision or order of this Court.
5. In the peculiar circumstances no order as to costs."
6 Aggrieved by the said order dated 05.06.2015 passed by the
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Labour Court partly allowing the application Exh.U-2, the Petitioner filed
a Revision being Revision Application (ULP) No.92 of 2015. It seems that
after the Labour Court had decided the application Exh.U-2, the
Respondent on certain documents being made available to it filed its
written statement on 21.08.2015. In the said written statement, the
maintainability of the Complaint was challenged on the ground of the
Petitioner being not a workman, on the ground of the territorial
jurisdiction of the Labour Court to try the Complaint having regard to the
jurisdiction clause in the appointment letter. It seems that an objection
was also raised on the touchstone of Section 59 of the said Act. The
Learned Member of the Industrial Court whilst exercising the revisionary
jurisdiction having regard to the said objections raised, held that the
Learned Judge of the Labour Court had erred in deciding the said
application Exh.U-2 as the objections raised by the Respondent go to the
root of the matter as regards the maintainability of the Complaint. The
Learned Judge accordingly deemed it appropriate to set aside the order
dated 05.06.2015 passed by the Labour Court. However, as indicated
above, the Learned Member of the Industrial Court though has allowed
the Revision Application, in fact the reliefs granted by the impugned
order dated 29.01.2016 were against the Petitioner. It is the said order
dated 29.01.2016 passed by the Learned Member of the Industrial Court
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which is taken exception to by way of the above Petition.
7 Heard the Learned Counsel for the parties. The question that
arises is whether the Industrial Court could have set aside the order in a
Revision filed by the Petitioner. Though the said order is vulnerable on
the said ground, the intervening facts would have to be noted. The above
Revision Application was filed on 03.09.2015. It appears that in the
proximity of the filing of the Revision Application, the Respondent herein
had made an application on 19.10.2015 for a preliminary issue to be
framed, which preliminary issue as indicated above was revolving around
the territorial jurisdiction of the Labour Court. It seems that the
application is pending consideration of the Labour Court and is awaiting
the filing of the reply by the Petitioner. Since the Learned Counsel
appearing on behalf of the parties i.e. Mr. Devang Parmar appearing for
the Petitioner and Mrs. N. R. Patankar appearing for the Respondent are
ad-idem that the preliminary issues as culled out in the operative part of
the impugned order passed by the Industrial Court are required to be
framed, it is therefore not necessary to await the outcome of the
application filed by the Respondent. The operative part of the impugned
order passed by the Industrial Court is accordingly set aside and
substituted by the following :-
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I) In view of the consensus between the Learned Counsel
for the parties, the following three preliminary issues are
framed :-
A) Whether the Complaint filed by the Petitioner
being Complaint (ULP) No.6 of 2015 is
maintainable having regard to the Section 59
of the MRTU & PULP Act, 1971 ?
B) Whether the Petitioner is a workman within
the meaning of 2(s) of the Industrial Disputes
Act, 1947 ?
C) Whether the Labour Court, Mumbai has the
territorial jurisdiction to entertain the
Complaint ?
II) The said issues to be decided latest by 31.12.2016 by
the Learned Member of the Industrial Court by giving
proper opportunity to the parties.
III) The order of the Labour Court directing the payment
of deposit of wages from month to month would continue
to operate till the decision is rendered on the preliminary
issues and would cease to operate if the preliminary issues
are decided against the Petitioner.
IV) The direction contained in the order of the Labour
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Court of not permitting the Petitioner to withdraw the
amount would continue to operate.
8 The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute, with parties to bear their respective costs.
[R.M.SAVANT, J]
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