Bombay High Court
Vandana Rajesh Satpude And Others vs M/S. Matru Sewa Sangh , Nagpur, ... on 5 June, 2017
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6837 OF 2015
PETITIONERS : 1] Vandana Rajesh Satpude,
Aged about 38 years, Occupation : Nil
2] Varsha Sanjay Chawhan,
Aged about 42 years, Occupation : Nil
3] Alka Krushnarao Randive,
Aged about 35 years, Occupation : Nil
4] Sharmila Shivram Pathade,
Aged about 38 years, Occupation : Nil
5] Nisha Ramesh Singh Chawhan,
Aged about 26 years, Occupation : Nil
6] Priti Parag Bhelawe,
Aged about 32 years, Occupation : Nil
7] Varsha Mahadev Atram,
Aged about 31 years, Occupation : Nil
8] Rupali Laxman Jamgade,
Aged about 27 years, Occupation : Nil
9] Usha Sanjay Mendhe,
Aged about 39 years, Occupation : Nil
10] Vandana Sunil Masram
Aged about 45 years, Occupation : Nil
11] Vaishali Suresh Burande,
Aged about 25 years, Occupation : Nil
12] Megha Marotrao Sherkar,
Aged about 37 years, Occupation : Nil
13] Anita Wamanrao Thakre,
Aged about 24 years, Occupation : Nil
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14] Sunita Ramawatar Pal,
Aged about 42 years, Occupation : Nil
15] Priya Pradeep Pande,
Aged about 24 years, Occupation : Nil
16] Shital Laxmanji Dhawale,
Aged about 23 years, Occupation : Nil,
17] Sonu Liladhar Ukey,
Aged about 30 years, Occupation : Nil
18] Rakhi Daddaji Giri,
Aged about 32 years, Occupation : Nil
19] Amrapali Ramesh Bele,
Aged about 34 years, Occupation : Nil
20] Prital Rambhau Atkari,
Aged about 22 years, Occupation : Nil
21] Surbhi Subhash Charpe,
Aged about 21 years, Occupation : Nil
22] Lata Anandrao Bandebuche,
Aged about 23 years, Occupation : Nil
23] Karishma Gautam Humane,
Aged about 21 years, Occupation : Nil
Petitioner Nos.1 to 23 are terminated from service.
All C/o Vandana Ramesh Satpude,
Plot No.37, Telephone Nagar, Narsala Road,
Umred Road, District Nagpur - 440 034.
VERSUS
RESPONDENT : M/s Matru Sewa Sangh,
Sitabuldi, Nagpur, through its Secretary.
---------------------------------------------
Mr. S. D. Thakur, Advocate for the petitioners.
Mr. V. P. Marpakwar, Advocate for the respondent.
---------------------------------------------
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CORAM : PRASANNA B. VARALE, J.
Judgment Reserved on : December 15, 2016.
Judgment Pronounced on : JUNE 05, 2017
JUDGMENT
By this petition, the petitioners challenge the order
passed by the learned Member, Industrial Court, Nagpur, dated
29.09.2015 in Complaint ULPN Nos. 154 to 177 of 2013, thereby
declining to entertain the complaints filed by them, observing that
Industrial Court has no jurisdiction to try and decide the complaints
as not maintainable.
2] It would be useful to refer to the facts, in brief, giving
rise to the present petition :
Petitioner No.1 - Vandana Satpute had filed complaint
ULPN No.154/2015 before the Industrial Court, Maharashtra,
Nagpur Bench, Nagpur under Sections 5, 28 and 30 and Under Item
Nos.6, 9 and 10 of Schedule IV of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
The other petitioners had also filed the identical complaints before
the Industrial Court, Nagpur. It was the case of the petitioners that
4 WP6837.15.odt
they were in employment of the respondent-establishment as 'Sisters'
since 2004. It was submitted in the complaints that they possess
requisite qualification to work as 'Trained Nurse' and fall in the
category of highly skilled employee. It was submitted that there
were more than 100 employees in the respondent-establishment and
said establishment is covered by the provisions of the Industrial
Disputes Act, 1947, Model Standing Orders and also under the
provisions of the Minimum Wages Act, 1946. It was submitted by
the complainants that though, they had completed continuous
service of 240 days in a calender year and acquired status of regular
and permanent employees, they were deprived of the minimum
wages and grant of status of permanent employees. It was submitted
in the complaints that though, the respondent- establishment was in
need of continuous services of the petitioners, with mala fide
intention, the respondent-establishment asked the petitioners to
undergo written test and personal interview. The petitioners were
intimated that after completion of these formalities, fresh
appointment letters would be issued. The petitioners were not
agreeable to the terms and conditions of the respondent-
establishment as the same was illegal and improper and as such, they
refused to attend the test and interview. It was further submitted
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that under the garb of fresh appointments, the respondent
establishment wanted to engage the petitioners on fixed term basis.
3] It was submitted by the petitioners/complainants that a
communication was issued to petitioner no.1 - Vandana Satpude and
other petitioners, dated 26.6.2015, informing that their appointment
was for a fixed term and their services would come to an end with
effect from 30.6.2015. Petitioner no.1 and the other petitioners,
being aggrieved by the said communication, filed complaints before
the Industrial Court on 01/7/2015 along with an application under
Section 30(2) of the M.R.T.U. & P.U.L.P. Act for interim relief. The
complaints were filed with the following prayers :
i] declare that the respondent has engaged in
and is still engaging in the unfair labour practices
complaint of ;
ii] direct the respondent to withdraw all these
unfair labour practices during the pendency of these
proceedings and also finally ;
iii] quash and set aside the impugned order
dated 26.6.2015 issued by th respondent so as to
terminate services of the complainant and also
direct the respondent to allow the complainant to
perform her duties as before ;
iv] direct the respondent to grant to the
complainant regularization and permanency
immediately from the date she has completed 240
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days continuous service ;
v] direct the respondent to pay to the
complainant minimum wages as are applicable to
highly skilled employee in the scheduled
employment of hospitals with retrospective effect
and to pay the arrears thereof within a period of
one month from the date of the order of this
Hon'ble Court;
vi] pass such other order, direction or relief this
Hon'ble Court deems fit and proper.
4] The respondent filed reply to the application. Specific
grounds were urged by the respondent in the reply in respect of
maintainability of the complaints and applications. It was submitted
that the substantial grievance of the complainants was in respect of
termination order and accordingly, substantial prayer was also for
setting aside the alleged termination order. It was submitted by the
respondent that letter/communication, dated 26.6.2015 was not an
order of termination, but it was an intimation. It was submitted that
petitioner no.1 and the other petitioners were appointed on fixed
term basis vide orders issued to them. The period of fixed term was
from 01.4.2015 till 30.6.2015. By the said communication dated
26.6.2015, it was informed that the contract between the parties by
way of fixed term appointment would come to an end on 30.6.2015.
It was further submitted that the nature of the respondent -
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establishment could not have been covered under the definition of
an 'Industry', as defined under Section 2(j) of the Industrial Disputes
Act, 1947. It was submitted that in view of the nature of respondent
establishment itself, it was excluded from the purview of an
'Industry'. It was submitted that such fixed term appointment is
covered under the provisions of the Industrial Disputes Act, more
particularly under Section 2(oo)(bb). It was further submitted that
the petitioners, by accepting the appointment on fixed terms basis,
had agreed the terms of the contract between the parties and as such
were not entitled to raise any claim either in respect of grant of
permanency or wages. It was further submitted that total staff
employed in the respondent-establishment is less than 50. It was
also submitted that the respondent-establishment was not earning
any profit. It was also submitted that though, the petitioners have
raised the claim that they were working with the respondent
establishment since long period, no material such as appointment
orders etc. was placed on record to substantiate their claim. The
Industrial Court, on consideration of the rival contentions of the
parties passed the order dated 29.9.2015 and the same is impugned
in the present petition.
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5] Mr. Thakur, the learned counsel for the petitioners
vehemently submitted that the learned Member, Industrial Court has
misdirected itself by declining to entertain the complaints on the
ground of maintainability observing that the Industrial Court has no
jurisdiction to try and decide the complaints under Section 28 of the
M.R.T.U. and P.U.L.P. Act. It was submitted by the learned counsel
for the petitioners that the Industrial Court and the Labour Court are
having same powers conferred upon them and on the backdrop of
legislative mandate that both these Courts are expected to exercise
the powers so as to prevent occurrence of unfair labour practices, the
Industrial Court ought not to have adopted a hyper technical
approach. The learned counsel also submitted that the Industrial
Court has erred in placing reliance on the prayer seeking challenge
to the termination order and ignoring the other prayer which were
in the nature of other unfair labour practices. It was thus the
submission of the learned counsel for the petitioners that a co-joint
reading of the prayers on the backdrop of the relevant provisions was
expected of the learned Member of the Industrial Court. The learned
counsel then by referring to the provisions of the M.R.T.U. and
P.U.L.P. Act submitted that the duties to be discharged by the
learned Industrial Court and the learned Labour Court are provided
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under the Act. The Industrial Court misdirected itself on an
erroneous assumption that every termination or dismissal attracts
Item 1 of Schedule IV. The learned counsel vehemently submitted
that jurisdiction of the Industrial Court to try unfair labour practices
relating to discharge/dismissal is much wider than the jurisdiction of
the Labour Court. It was also the submission of the learned counsel
for the petitioners that the Labour Court is having restricted and
limited jurisdiction in relation to Item I (a to g) of Schedule IV. The
learned counsel also submitted that it would be unjust for the
petitioners to ask them to challenge illegal termination firstly before
the learned Labour Court and to await for its decision on the issue
and for seeking relief in respect of other unfair labour practices. He
further submitted that it would be in the interest of the petitioners to
have decision in respect of alleged unfair labour practices from one
forum like Industrial Court in one go. Mr. Thakur, the learned
counsel for the petitioners has relied on the following judgments of
the Apex Court and this Court in support of his submissions :
1. 1986 (2) SCC 624
SG Chemicals Employees' Union .vs. SG Chemicals
2. 1987 (1) CLR 23 (Bom)
Pratibha Sambaji Kubal .vs. Ravindra Hindustan Platinum Pvt.
Ltd. and others.
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3. 1989 Supp (1) SCC 226
Maharashtra State Co-op. Cotton Growers Marketing
Federation Ltd. .vs. Shripati Pandurang Khade and others.
4. 1991 II CLR 726
Dalanvalan Imarat Bandhkam & Patbandhare Kamgar
Union .vs. The state of Maharashtra and others.
5. 1994 (1) Mh.L.J. 776
Dattatraya Shankarrao Kharde .vs. Executive Engineer, Chief
Gate Erection Unit No.2 and another.
6. 1998 II CLR 273
Industrial perfumes Ltd. .vs. Industrial Perfumes Workers Union
7. 2002 (1) CLR 699 (Bom)
Bombay Transport and Dock Workers Union .vs. Aryadoot
Transport Ltd. and others.
8. 2008 (1) Bom.C.R. 602
R.K. Shinde and others .vs. Shekoba Auto Pvt. Ltd. and
another
9. 2011 (Supp.) Bom.C.R. 791
S.B. Patole and others .vs. Fujitsu ICIM Ltd. and others.
6] Per contra, Mr. Marpakwar, the learned counsel for the
respondent vehemently submitted that no error is committed by the
learned Industrial Court in disposing of the complaints. The learned
counsel submitted that though, the petitioners submitted that they
were in continuous service with the respondent for a long period and
acquired status of permanent employee, no such material was placed
before the Industrial Court, on the contrary, the appointment orders
11 WP6837.15.odt
placed on the record of this Court clearly show that the petitioners
were appointed for a temporary period on consolidated salary. The
learned counsel then submitted that as appointment of the
petitioners was in the nature of a contract for a fixed term and the
respondent is entitled to appoint the persons on such fixed term
basis, the case of the respondent is covered under the provisions of
Section 2(oo)(bb) of the I.D. Act and as such, it is not the case of the
termination as alleged by the petitioners.
7] Mr. Marpakwar, the learned counsel for the respondent
then submitted that the petitioners had approached the Industrial
Court challenging communication dated 26.6.2015 and the said
communication is only an intimation letter. The learned counsel
then submitted that the respondent is a registered trust and the
petitioners were employed as Sisters in the hospital run by the
respondent. He further submitted that in view of Section 2(j) of the
I.D. Act, the respondent is excluded from the purview of 'Industry'.
He then submitted that though the petitioners have alleged in the
complaints and the applications that the respondent is running
hospital having 60 indoor patients on regular basis and the number
of outdoor patients vary from 80 to 100 per day, no material was
12 WP6837.15.odt
placed on record to support this claim. On the contrary, he
submitted that the respondent is running 50 bedded hospital. He
further submitted that even the Municipal Corporation has granted
permission to the respondent trust for 50 bedded hospital and there
are various communications issued to the respondent by the State
authorities to provide treatment either at the minimum charges or
free of cost. Thus, it was the submission of the learned counsel for
the respondent that the respondent is not earning any profit, but it is
a charity and social service undertaken by the respondent..
8] Mr. Marpakwar, the learned counsel for the respondent
submitted that by this petition, the petitioners have challenged the
communication dated 26.6.2015, by which services of the petitioners
were to come to an end on 30.6.2015. The complaints were filed on
01.7.2015. As such, at the time of filing of the complaints, services
of the petitioners were already terminated. The learned counsel then
submitted that the main and substantial prayer of the petitioners was
in respect of alleged termination and as such, the Industrial Court
could not have exercised the jurisdiction in the matter of alleged
termination and rightly disposed the complaints. The learned
counsel then submitted that there are only 40 - 42 employees
13 WP6837.15.odt
working in the hospital run by the respondent and in view of this
fact, the Model Standing Orders are not applicable to the respondent
establishment. The learned counsel placed heavy reliance on the
judgment of this Court in the case Manoj Amdas Ingale .vs.
Member, Industrial Court, Nagpur and another, reported in 2004
II C.L.R. 952 and submitted that as the reported judgment is in
identical situation, the same squarely applies to the present matter.
The learned counsel also placed heavy reliance on the judgments in
the case of Shekoba Auto Pvt. Ltd. .vs. B.D. Hajare and others,
reported in 2006 II C.L.R. 216 ; and Sunflag Iron and Steel Co.
Ltd., Warthi .vs. Sunflag Iron and Steel Mazdoor Sabha, Warthi
and another, reported in 2016 (1) Mh.L.J. 794.
9] Mr. Marpakwar, learned counsel for the respondent then
submitted that though, the petitioners have prayed for regularization
and minimum wages, the same could not have been considered
unless and until the issue of termination is considered and the issue
of termination can only be considered, tried and decided by the
learned Labour Court. He submitted that the petitioners could have
availed the remedy of filing complaints before the learned Labour
Court and no prejudice would be caused to the petitioners by
14 WP6837.15.odt
adopting such course of filing complaint before the appropriate
forum i.e. learned Labour Court.
10] With the assistance of both the learned counsel, I have
gone through the material placed on record as well as the judgment
relied on by them. Though, the submissions of Mr. Thakur, the
learned counsel for the petitioners look attractive at the first blush,
on going through the material placed on record and the judgments
relied on by him, I am unable to accept his submissions. Perusal of
the material, particularly the complaints filed by the petitioners,
show that the complaints revolve around the challenge to the letter/
communication, dated 26.6.2015. It is alleged that the respondent is
indulged in unfair labour practice by appointing the petitioners on
fixed term basis, though, the petitioners have completed 240 days
service in a calender year and though, they were working with the
respondent for a long period. The appointment orders placed on
record at Annexure-4 in respect of petitioner no.1 - Vandana Satpute
are of 23.4.2004, 29.9.2004, 30.12.2004, 12.3.2005, 10.4.2006,
06.11.2009, 12.4.2010, 31.3.2011, 09.4.2012, 01.4.2013, 03.4.2014
and 31.3.2015. The learned Member of Industrial Court, in its
judgment, refers in detail to the initial date of appointments, period
15 WP6837.15.odt
of extension and working period of the petitioners. Apart from
petitioner no.1 - Vandana, the other petitioners were appointed in
2006, 2008, 2009, 2010, 2011, 2012, 2013 and 2014. Perusal of the
appointment orders show that these appointments were for a fixed
period and on consolidated salary and though, subsequently, the
period was extended, the further appointments were also on
consolidated salary. Though, it is submitted by the petitioners that
the respondent, with an intention to deprive them from the benefits
such as permanency and minimum wages asked the petitioners to
attend certain examination and interview and the petitioners refused
to attend the same, the order dated 31.3.2015 issued to petitioner
no.1 shows that petitioner no.1 had undergone the process of an
interview and was appointed on a temporary period i.e. from
01.4.2015 to 30.6.2015. The petitioners, though submitted before
the Industrial Court that the respondent establishment is running
hospital having capacity of 60 indoor patients and number of OPD
patients vary between 80 to 100 per day, no material to support the
claim was placed on record and said submission was countered by
the respondent in reply to the application, submitting therein that
the respondent is running hospital having capacity of 50 beds and
even the Corporation has granted permission for 50 bedded hospital.
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It is submitted by the respondent that as per the various
communications issued by the State Government, the respondent is
asked to provide the treatment in the hospital either at the minimum
charges or free of cost. Now these aspects certainly need
consideration on assessment of material evidence to be led by the
respective parties.
11] Mr. Thakur, the learned counsel for the petitioners
vehemently submitted that Industrial Court is having wider
jurisdiction whereas learned Labour Court is having restricted and
limited jurisdiction. It would be useful to refer to the relevant
provisions of Section 5 and Section 7 of the Act of 1971, which deal
with the duties of the Industrial Court as well as Labour Court. The
same read thus -
Section 5 - Duties of Industrial Court
It shall be the duty of the Industrial Court,-
(a) to decide an application by a union for grant
of recognition to it;
(b) to decide an application by a union for grant
of recognition to it in place of a union which has
already been recognized under this Act;
(c) to decide an application from another union or
an employer for withdrawal or cancellation of the
recognition of a union;
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(d) to decide complaints relating to unfair labour
practices except unfair labour practices falling in
Item 1 of Schedule IV;
(e) to assign work, and to give directions, to the
Investigating Officers in matters of verification of
membership of unions, and investigation of
complaints relating to unfair labour practices;
(f) to decide references made to it on any point of
law either by any civil or criminal court; and
(g) to decide appeals under section 42.
Section 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.
It would also be useful to refer to Item 1 of Schedule IV of the Act of
1971, which reads thus -
Schedule - IV,
Item 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 ;
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(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 employee, so as to
amount to a shockingly disproportionate
punishment.
12] The thrust of the petitioners in the complaints before the
Industrial Court was challenge to the communication dated
26.6.2015 submitting that the respondent is indulged in unfair
labour practice by illegally dismissing/terminating services. It was
also the case of the petitioners that though, the work was available
with the respondent-establishment, with mala fide intention, the
respondent continued the petitioners as casual employees for a
temporary period. In view of these allegations, the petitioners filed
complaints under Item 6 of Schedule IV of the Act of 1971. It was
also the submission of the learned counsel for the petitioners that the
respondent was not granting the minimum wages to the petitioners
and as such there was failure as contemplated under Item 9 of
Schedule IV. It was also submitted that the petitioners were under
compulsion to appear for written test and interview for continuity in
service and as such this act was an act of force under Item 10 of
Schedule IV. On the face of these averments and submissions, the
forum to decide the complaints is the Labour Court. On this count,
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the submission of Mr. Thakur, the learned counsel for the petitioners
that the forums namely Industrial Court and Labour Court are set
with an object to prevent the unfair labour practices and it is the
choice of the labour/workman to approach the concerned forum for
redressal of the grievance, cannot be accepted. Mr. Thakur, the
learned counsel placed heavy reliance on the judgment of the Apex
Court in the case of S.G.Chemicals Employees' Union's case (supra),
particularly paragraph 23 thereof, so also on the judgment of this
Court in Dattatraya Kharde's Case (supra), Paragraph 23 in S.G.
Chemicals case, reads thus -
"23. The last contention on the merits which was
raised on behalf of the Company was that though
the Company might have acted in contravention of
the provisions of section 25-0 of the Industrial
Disputes Act, it nonetheless would not amount to a
failure to implement the Settlement dated February
1, 1979, entered into between the Company and the
Union and, therefore, the act of closing down the
Churchgate Division was not an unfair labour
practice under section 28 of the Maharashtra Act
read with Item No. 9 of Schedule IV to the said Act.
This contention too found favour with the
Industrial Court. For reaching the conclusion that
the closing down of the Churchgate Division was
not an act of unfair labour practice on the part of
the Company, the Industrial Court relied upon the
decision of a learned Single Judge of the Bombay
High Court in the case of Maharashtra General
Kamgar Union v. Glass-Containers Pvt. Ltd. The
relevant passage in that judgment is as follows (at
P.331)
20 WP6837.15.odt
"It is difficult to accept the submission made
on behalf of the Union that non-compliance
with any statutory provisions such as S.25-FFA
must be regarded as failure by the employer to
implement an award, settlement or agreement.
The position might be different in relation to
certain statutory provisions which are declared
to hold the field until replaced by specific
provisions applicable to certain specific
undertakings. For example, the Model Standing
Orders may govern a particular employer and
his workmen till repulsed or substituted by
certified Standing Orders specially framed for
that employer and approved in the manner
provided under the statute or the rules. This
would not imply that provisions such as those
contained in s. 25FFA or s. 25-FFF of the
Industrial Disputes Act can be held or deemed to
be a part of the contract of employment of every
employee. Any such interpretation would be
stretching the language of item 9 to an extent
which is not justified by the language thereof".
It is not possible to accept as correct the view taken
in the said case. It is an implied condition of every
agreement, including a settlement, that the parties
thereto will act in conformity with the law. Such a
provision is not required to be expressly stated in
any contract. If the services of a workman are
terminated in violation of any of the provisions of
the Industrial Disputes Act, such termination is
unlawful and ineffective and the workman would
ordinarily be entitled to reinstatement and payment
of full back wages. In the present case, there was a
Settlement arrived at between the Company and the
Union under which certain wages were to be paid
by the Company to its workmen. The Company
failed to pay such wages from September 18, 1984,
to the eighty-four workmen whose services were
terminated on the ground that it had closed down
its Churchgate Division. As already held, the closing
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down of the Churchgate Division was illegal as it
was in contravention of the provisions of section
25-0 of the Industrial Disputes Act. Under sub-
section (6) of section 25-0, where no application for
permission under sub-section (1) of section 25-0 is
made, the closure of the undertaking is to be
deemed to be illegal from the date of the closure
and the workmen are to be entitled to all the
benefits under any law for the time being in force,
as if the undertaking had not been closed down.
The eigty-four workmen were, therefore, in law
entitled to receive from September 18, 1984,
onwards their salary and all other benefits payable
to them under the Settlement dated February 1,
1979. These not having been paid to them, there
was a failure on the part of the Company to
implement the said Settlement and consequently the
Company was guilty of the unfair labour practice
specified in Item 9 of Schedule IV to the
Maharashtra Act, and the Union was justified in
filing the Complaint under section 28 of the
Maharashtra Act complaining of such unfair labour
practice."
13] Though, Mr. Thakur, learned counsel for the petitioners
placed heavy reliance on the Apex Court judgment in S.G.Chemicals
Employees' Union's case and the judgment of this Court in Dattatraya
Kharde's Case, and though, there cannot be any doubt on the
proposition of law reflected in these judgments, in view of the facts
of the present matter, in my opinion, these judgments are of no help
to the petitioners. Insofar as judgment in S.G. Chemicals Employees
Union's case is concerned, it was the case of closure and the facts
22 WP6837.15.odt
were such that there was a settlement arrived at between the
company and the union under which certain wages were to be paid
by the company to its workmen, but the company closed down its
one division without complying with Section 25(O)(1) of the I.D.
Act, which amounted to illegal closure in view of Section 25(O)(6).
The workmen, whose services were terminated due to closure, were
entitled to receive salary and other benefits payable to them on the
retrenchment under settlement. The Apex Court, taking into
consideration these facts namely, settlement between the parties,
failure of the company to pay wages, fact that there were 84
workmen whose services were termination on the ground of closure,
allowed the appeal by special leave. The Apex Court in the matter of
S.G. Chemicals Employees Union's case also found that the respondent
management was a 'factory' as defined in Section 2(m) of the
Factories Act, 1948. A reference was also made to the definition of
'commercial establishment' contained in Section 2(4) of the Bombay
Shops and Establishments Act, 1948. The other admitted fact before
the Apex Court was the number of workmen in two divisions of the
respondent company i.e. in one division there were 110 workmen,
whereas in other division there were 60 workmen. It was also an
admitted fact that in the Marketing and Sales Division of the
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company at the registered office at Churchgate, there were 90
workmen. On the backdrop of these facts, if the facts of the present
matter are seen, it reveals that there is a dispute on the aspect of
status of the respondent. The respondent claims that it is a hospital
run by a charitable trust i.e. respondent and as such, it is neither
'commercial establishment' nor 'factory'. There is also dispute on
number of workers or employees. The petitioners submit that there
are 26 sisters and the hospital is having capacity of 60 indoor
patients, whereas the respondent submit that the permissible
capacity of the hospital is of only 50 beds and total staff is of 40 - 42
employees. It was also submitted by the learned counsel for the
respondent that the respondent may be entitled for the benefit of
provision namely Section 2(oo)(bb) of the I.D. Act. It will be useful
to refer to the said provision, which reads thus -
"2. Definitions-
.............
(oo) "retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted
by way of disciplinary action but does not include-
(a) ..........
(b) .........; or
(bb) termination of the service of the workman
as a result of the non-renewal of the contract of
employment between the employer and the workman
24 WP6837.15.odt
concerned on its expiry or of such contract being
terminated under a stipulation in that behalf
contained therein; or"
c] ...........
14] It was the submission of the learned counsel for the
respondent that as employment of the petitioners was on fixed term
basis, on completion of stipulated period, the respondent was
entitled to terminate the services of the petitioners. It was also his
submission that it was not mandatory for the respondent to renew
the contract of employment in view of said provision.
15] Thus, though, the attempt of Mr. Thakur, learned
counsel for the petitioners was that the learned Member, Industrial
Court misdirected itself and ignored the grievances of the petitioners
of unfair labour practice on the part of respondent i.e. non-grant of
status of permanent employee and non-payment of minimum wages,
the submission is on a presumption that the claim of the petitioners
is admitted by the respondent, but such is not the case as referred to
above. There is a serious contest on the claim of the petitioners. In
view of these facts, no error is committed by the learned member of
the Industrial Court in treating that the substantial grievance of the
petitioners was in challenge to the letter/communication of
25 WP6837.15.odt
termination. As such, the substantial prayer was for quashing said
letter. Accordingly, the Industrial Court observed that the competent
forum to adjudicate that issue is learned Labour Court and disposed
of the complaints.
16] Thus, in view of these disputed facts, the claim of the
petitioners cannot be accepted unless and until parties are permitted
to lead evidence and the evidence and material is assessed by the
competent forum. Though, Mr. Thakur, the learned counsel placed
reliance on the other judgments referred to above, in most of the
matters there was a case of closure and number of employees/
workmen was more than 50. In the facts of the present matter, there
is considerable merit in the submission of the Mr. Marpakwar, the
learned counsel for the respondent that the judgment of this Court in
Manoj Amdas Ingale and others .vs. Member, Industrial Court Nagpur
and another (supra) case is squarely applicable to the present case as
in identical circumstances, this Court observed considering the
substantive claim and grievance namely termination, that the
complaint is exclusively triable by the Labour Court and the
Industrial Court has no jurisdiction to entertain the complaint.
26 WP6837.15.odt
17] In Manoj Amdas Ingale's case (supra), reliance was
placed on the Apex Court judgment in the case of Dattatraya
Shankarrao Kharde and another .vs. Executive Engineer and another
(1994 I CLR 1022) and the judgment of this Court in R.P. Savant and
others .vs. Bajaj Auto Ltd. (2002(1) Mh.L.J. 626). This Court, in
Manoj Ingale's case, while referring to the submissions, observed
thus : -
"14. No doubt that the contention raised by Shri S. D.
Thakur, the learned Counsel for the petitioners that
the complaints for dismissal or termination can be
entertained by both the Labour Court as Industrial
Court is with substance. On the perusal of Schedule II
and Schedule IV, it would be clear as to in what
circumstances, the termination could be challenged
before the learned Labour Court or learned Industrial
Court. If the termination falls in sub-clauses in Item
(1) of Schedule IV, the complaints can exclusively be
entertained only by the Labour Court. However,
reading of Schedule II itself would make it clear that
the provisions of Schedule II which has been relied by
the learned Counsel for the petitioners would not be
applicable to the termination of the nature which is
subject matter of the present petition. Item 1 of
Schedule II on which the learned Counsel for the
petitioners relies, relates to threatening employees
with discharge or dismissal if they join Union
whereas, Clause (a) and Clause (b) of Item 4
Schedule II covers discharging or punishing an
employee when such a dismissal or termination is
related to encouraging or discouraging membership of
any union. It is thus clear that the aforesaid
dismissals or terminations or threat to dismiss or
terminate, are intended to protect the freedom of
association of the members of the Union. The
27 WP6837.15.odt
aforesaid provisions are intended to protect the
employees, so that by their free will, they can join any
union. They are also intended, so that the
management does not interfere in the rivalries of the
Union and encourage or discourage a particular
union by threatening the employees to join or not to
join a particular union. Admittedly, the terminations
in the present case are not related to encouragement
or discouragement of trade unions and as such, the
said items of Schedule II, which have been relied by
the learned Counsel for the petitioners, are of no
relevance for the purpose of present petition. So also
Item No. 7 of Schedule IV would have no relevance
insofar as the present petition is concerned. The said
item relates, to discharge or discrimination against an
employee, for filing charges or testifying against an
employer in any enquiry or proceeding related to any
industrial dispute. The said item protects an employee
of his freedom of filing charge or testifying against an
employer in any enquiry or proceedings relating to
any industrial dispute. The same is not the case here.
Therefore, the aforesaid provisions which have been
relied on by the learned Counsel for the petitioners
would have no relevance for the present petition.
15. Insofar as the contention of the petitioners, that,
model standing orders will have to be read as
inclusive in the word "agreement" under Item 9 is
concerned, the same question is no more res Integra
as it is concluded by the judgments of the Division
Bench of this Court in the cases of Dattatraya
Shankarrao Kharde and Anr. v. Executive Engineer,
Chief Gate Erection Unit No. 2 Nagpur and Anr.
(cited supra) and R. P. Sawant and Ors. v. Bajaj Auto
Limited and Anr. (cited supra). In view of the law
laid down by the judgments in the aforesaid cases, it
is clear that the model standing orders are included in
the term "agreement" under Item 9.
16. The limited question that arises for consideration,
in the present petition, is that when on the factual
28 WP6837.15.odt
basis the main grievance raised in the complaints is
regarding termination of an employee, and when they
have also raised by way of ancillary grievances;
whether a complaint will lie before the Labour Court
or an Industrial Court.
24. Insofar as the main emphasis placed by Shri S. D.
Thakur, the learned Counsel for the petitioners on the
findings given by this Court that the standing orders
are covered under the term "agreement" under Item 9
of Schedule IV is concerned, as I have already held
hereinabove that the said question is no more res
integra. However, one is unable to understand, as to
how the aforesaid ratio would come to the help of the
petitioners, when on facts of the present case, it has
been found that the main grievance of the petitioner
relates to termination. In my view the aforesaid
judgment of the Division Bench in Dattatraya
Shankarrao Kharde's case, is of no assistance to the
case of the petitioners.
25. In that view of the matter, I am of the considered
view, that the learned Industrial Court was right in
dismissing the complaints of the petitioners, on the
ground that the grievance of the petitioners was
exclusively triable by the Labour Court and, therefore,
it had no jurisdiction, to entertain the complaints.
The petition is, therefore, dismissed with no order as
to costs. Rule is accordingly discharged. Petition
dismissed.
18] Mr. Marpakwar, the learned counsel for the respondent
also placed reliance on the judgment of this Court in the case of
Nagpur District Central Cooperative Bank Ltd. .vs. Prashant
Ashokrao Salunke and another, reported in 2016 (1) Mh.L.J. 706.
This Court observed at paragraphs 18, 19 and 21, thus -
29 WP6837.15.odt
18. Again in the case of Gangadhar Pillai (supra),
the Apex Court was considering the case of a
workman who was appointed for a specific period.
After the services of the workman had come to an
end, he filed a complaint before the Industrial Court
contending that the employer had committed an
unfair labour practice within the meaning of Item 6
of Schedule IV of MRTU & PULP Act. The complaint
was dismissed by the learned Industrial Court. A writ
petition challenging the same and the letters patent
appeal were respectively dismissed by the learned
Single Judge and the Division Bench of this court,
contending that an employee was purposefully kept
on a temporary basis for a period of 22 years. It was
contended before Their Lordships of the Apex Court
that the employer had indulged in unfair labour
practice as specified in Item 6 of Schedule IV of the
MRTU & PULP Act. Their Lordships observed thus:-
"27. It has furthermore not been denied or disputed
that services of the employees engaged on such terms
would come to an end on completion of the period of
contract. Such retrenchment would come within the
purview of Section 2(oo)(bb) of the Industrial
Disputes Act. Once the period of contract was fixed
and the same was done keeping in view the nature of
job, it cannot be said that the act of the employer in
terminating the services of the appellant was actuated
by any malice. Such an act on the part of the
employer cannot be said to have been resorted to for
defrauding an employee. The object of such temporary
employment was bona fide and not to deprive the
employee concerned from the benefit of a permanent
status. We, having regard to the fact situation
obtaining herein, cannot infer that the findings of the
Tribunal as also the learned Single Judge of the High
Court were manifestly erroneous warranting exercise
of our extraordinary jurisdiction under Article 136 of
the Constitution of India.
28. It is not the law that on completion of 240
30 WP6837.15.odt
days of continuous service in a year, the concerned
employee becomes entitled to for regularization of his
services and/ or permanent status. The concept of 240
days in a year was introduced in the industrial law
for a definite purpose. Under the Industrial Disputes
Act, the concept of 240 days was introduced so as to
fasten a statutory liabilities upon the employer to pay
compensation to be computed in the manner specified
in Section 25-F of the Industrial Disputes Act, 1947
before he is retrenched from services and not for any
other purpose. In the event a violation of the said
provision takes place, termination of services of the
employee may be found to be illegal, but only on that
account, his services cannot be directed to be
regularised. Direction to reinstate the workman
would mean that he gets back the same status.
(emphasis supplied)
19. It could be seen from the aforesaid observations
that once the services of the employee engaged on a
contractual basis for a fixed period come to an end on
account of completion of the period of contract , the
same would come within the purview of Section 2(oo)
(bb) of the ID Act. It has been further held that once
the period of contract was fixed and the same was
done keeping in view the nature of job, it cannot be
said that the act of the employer in terminating the
services of the appellant was actuated by any malice.
It has been further held that merely on completion of
240 days of continuous service in a year, the
employee concerned does not become entitled for
regularisation of his services and/or permanent
status. Their Lordships have held that under the
Industrial Disputes Act, the concept of 240 days was
introduced so as to fasten statutory liabilities upon
the employer to pay compensation to be computed in
the manner specified in Section 25F of the ID Act,
before he is retrenched from services and not for any
other purpose. It has been further held that in the
event of violation of the said provision takes places,
termination of services of the employee may be found
31 WP6837.15.odt
to be illegal, but only on that account, his services
cannot be directed to be regularised.
21. It could thus be seen that while construing the
provisions of Section 2(oo)(bb) read with Chapter V-
A of the ID Act, Their Lordships have consistently held
that if the contract of employment is for a fixed
period and the appointment is terminable at the end
of the period of contract, then in view of provisions of
Section 2(oo)(bb), the provisions of Chapter V-A
would not be applicable. It has been further held that
assuming that a workman has completed 240 days' of
service in a year, even then if the provisions of Section
2(oo)(bb) of the ID Act are applicable, the provisions
of Chapter V-A of the ID Act would not be applicable.
It has been further held that what is important is
substance of the contract and not the form.
19] In the case of Sunflag Iron and Steel Co. Ltd., Warthi
(supra), relied on by the learned counsel for the respondent,
judgment of the Apex Court in S.G. Chemicals Employees' Union's case
was relied on, identical submissions were advanced and this Court
while dealing with the submissions observed thus at paragraphs 9,
10 and 11 -
9. Aforesaid decision of the Division Bench was
challenged before the Supreme Court in Hindustan
Lever Ltd. (supra). After considering the entire scheme
of the said Act, it was observed by the Supreme Court
in para 19 of its judgment that the term "to discharge
or dismiss" also indicates an attempted action towards
such discharge or dismissal. In para 24 thereafter it
was held that to discharge or dismiss an employee
would include the final act of discharge or dismissal as
well as any penultimate step taken towards that
32 WP6837.15.odt
destination. Thereafter, in para 29, it has been
observed thus:
"29........................................................... But
the legislature has conferred jurisdiction on the
Labour Court to entertain the complaints also on
the additional ground that the employer is
engaged in any unfair labour practice. This
clearly indicates a present continuous action as it
reflects a present continuous tense. That would
include a complaint regarding the employer, who
at present is engaging in the alleged unfair labour
practice by way of victimisation. That would
indicate actions which are contemplated and in
pipeline but which are still not finally completed.
If the learned counsel for the appellant is right
that only the final act of discharge or dismissal
can be covered by the sweep of Section 28(1),
then the terminology used by the Legislation "or is
engaging in any unfair labour practice" would be
rendered totally redundant and otiose, as such a
completed action would already stand covered by
the earlier phrase "has engaged in any unfair
labour practice". Similar words are found in
Section 30(1) which deals with powers of the
courts and provides that where the court decides
that any person named in the complaint has
engaged in, or is engaging in, any unfair labour
practice, it may by its order give relief as
mentioned in clauses (a), (b) and (c) of that sub-
section. A conjoint reading of Section 28(1) and
Section 30(1) clearly shows that complaint can
be filed for the alleged unfair labour practice as
contemplated in Item 1 of Schedule IV on any of
the grounds mentioned therein, both at the stage
where such final orders of discharge or dismissal
are passed on the alleged grounds concerned and
also at the stages prior to such final orders, once
the employer is shown to have taken a firm step
in that direction by initiating departmental
enquiries with a view to ultimately discharge or
33 WP6837.15.odt
dismiss the employee on any of the alleged
grounds and such enquiries are presently in
progress or are presently in the offing. Then the
employer can be said to be presently engaging in
any such unfair labour practice. It becomes
obvious that the twin phrases 'has engaged' and
'is engaging in' indicate not only the finished,
complete or continuous action but also an
incomplete continuous action."
It was thereafter concluded that if an employer is
alleged to be engaged in discharging any employee
even before the actual order of discharge is passed he
can be said to be engaged in such discharge if it is
shown that an attempt is made with an intention to
ultimately discharge the employee.
10. If the facts of the present case are examined in the
light of aforesaid law, it is obvious that by
communication dated 30-6-2014, the petitioner has
taken penultimate step with a view to discharge the
employee from service on 2-9-2014. Hence, in the light
of aforesaid law, it can clearly be said that a step had
been taken by the petitioner to discharge from service
of an employee. It is also to be noted that the Supreme
Court in the aforesaid decision also recognized the
powers of Labour Court to issue interim orders with a
view to prevent an alleged unfair practice from getting
fructified.
11. The contention that there was failure to
implement the settlement or agreement due to which
provisions of Item 9 were being invoked is urged on
the basis of the decision in S. G. Chemicals (supra).
Said case considers violation of provisions of Section
25-O of the Industrial Disputes Act, 1947. However,
considering the facts of the present case, the result
being one of intended discharge, the jurisdiction in
that regard was available under Item 1 of Schedule IV.
Item 1(b) would cover a case of colourable exercise by
the employer of his right which is not in good faith.
34 WP6837.15.odt
Similar submission was considered in Pepsico
India Holdings (supra) and it was held that
appropriate relief could be claimed before the Labour
Court. In Zim Laboratories Ltd. (supra), it was found
that no steps for terminating the services of the
employees were taken. The only direction sought was
to provide them wages. It was in that background
that this Court found that as there was existence of
relationship of employer and employee between the
parties, the same was sufficient to attract Item 9 of
Schedule IV. As regards judgment of the learned Single
Judge in C. R. Dhuri (supra), it was pointed out by
the learned Counsel for the petitioner that the same
has been subsequently set aside in Appeal
No.432/2006 Managing Director Vs. C. R. Dhuri by
the Division Bench vide judgment dated 19-7-2006.
Similarly, the facts in the case of Ram Khicher (supra)
are clearly distinguishable from the case in hand.
20] There is also merit in the submission of the learned
counsel for the respondent that while disposing of the complaints on
the ground of jurisdiction, the Industrial Court permitted the
petitioners to approach the appropriate forum such as the petitioners
were only directed to approach the appropriate forum and it is not
the case that the petitioners were having no forum to agitate their
grievances and seek redressal of the same.
21] Considering all the above referred aspects, in my
opinion, no error is committed by the learned Member of the
Industrial Court. The petition thus being devoid of merit, deserves to
35 WP6837.15.odt
be dismissed and the same is accordingly dismissed.
Rule stands discharged. No order as to costs.
JUDGE
Diwale
