Bombay High Court
Convent Of Marry Of Immaculate vs Samadhan Namdeo Dongardive on 22 June, 2017
Bench: I.K. Jain
wp.3227.00.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3227 OF 2000
Convent of Marry of Immaculate,
(A registered Public Trust),
Civil Lines, Nagpur,
Through its Manager .... Petitioner
-- Versus -
Shri Samadhan s/o Namdeo Dongardive,
Age about 45 years, Occu. Rikshaw Puller,
R/o Mahatma Gandhi Nagar, Surendragarh,
Nagpur. .... Respondent
Shri P.S. Sadavarte, Advocate for the Petitioner.
None appeared for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 22, 2017.
ORAL JUDGMENT :-
The petition challenges order dated 06/07/2000
passed by the Industrial Court, Nagpur in Complaint (ULPA)
No.760/1993 allowing the complaint and declaring that
respondent therein engaged in unfair labour practice under Item
9 of Schedule IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (hereinafter
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referred to as 'the MRTU & PULP Act' for short) by not considering
preferential right of complainant for employment under Section
25H of the Industrial Disputes Act, 1947.
02] The facts giving rise to the petition may be stated in
brief as under :
i. Respondent was a Class-IV employee. He was in part
time employment. On 05/09/1985, he submitted an
application and voluntarily left the employment. By
the said application, he had given up his right to
claim employment, wages or rent for accommodation
in future.
ii. Thereafter, respondent filed an application under
Section 33-C(2) of the Industrial Disputes Act for
recovery of difference of wages. The said application
came to be withdrawn by him. He then moved an
application before Conciliation Officer to refer the
dispute to the Court. Conciliation Officer rejected the
reference vide order dated 03/07/1990 holding that
no case for reference is made out.
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iii. Application for condonation of delay was then moved
and challenge to termination of services was raised
before the Labour Court. Vide order dated
05/02/1992, application for condonation of delay was
rejected by the Labour Court and the order of
rejection of condonation of delay was confirmed in
revision on 10/03/1993.
iv. On 29/04/1993, respondent filed an application
before the Industrial Court alleging that his
preferential right to employment was not considered
and the employer had engaged in unfair labour
practice under Items 5 and 9 of the Schedule IV of
the MRTU & PULP Act. Complaint was resisted by the
petitioner/original respondent.
v. Considering the rival contentions between the
parties, Industrial Court came to the conclusion that
employee was not challenging his termination, but
challenge was to the non-consideration of his
preferential right of employment. Complaint was
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allowed and interim order dated 06/07/2000 came to
be passed by the Industrial Court with a direction to
the employer to provide re-employment to
complainant on the post of Gardener whenever
vacancy of such post arises in the establishment of
employer. It is this order, which is the subject matter
of present writ petition.
03] Heard Shri P.S. Sadavarte, learned Counsel for
petitioner-employer. It is submitted that having lost the entire
legal battle, respondent filed complaint before Industrial Court
alleging violation of Section 25H of the Industrial Disputes Act,
which was not maintainable in view of express bar under Section
59 of the MRTU & PULP Act. Learned Counsel submits that
direction issued by the Industrial Court to provide re-employment
on the post of Gardener, whenever, vacancy of such post arises,
cannot be issued in view of clear provisions of the MRTU & PULP
Act. According to learned Counsel, impugned orders suffer from
error of law and, therefore, interference in extraordinary
jurisdiction is warranted.
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04] Section 59 of the MRTU & PULP Act reads as under :
"59. Bar of proceedings under Bombay or
Central Act : If any proceeding in respect of any
matter falling within the purview of this Act is
instituted under this Act, then no proceeding shall at
any time be entertained by any authority in respect of
that matter under the Central Act or, as the case may
be, the Bombay Act; and if any proceeding in respect
of any matter within the purview of this Act is
instituted under the Central Act, or as the case may
be, the Bombay Act, then no proceedings shall at any
time be entertained by the Industrial or Labour Court
under this Act."
05] From the careful reading of provisions of Section 59 of
the MRTU & PULP Act, it can be seen that proceedings under
Bombay or Central Act are barred if any proceeding in respect of
any matter within the purview of the MRTU & PULP Act is
instituted. In the present case, it is not in dispute that
respondent preferred an application for reference of dispute
alleging his illegal termination. The Conciliation Officer rejected
the application and refused to send the reference for
adjudication to the Labour Court on the ground that no case for
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reference was made out. This order came to be passed before
an application alleging violation of Section 25H of the Industrial
Disputes Act was moved. The order of Conciliation Officer has
not been challenged by respondent. The said order has,
therefore, reached finality.
06] In this background, bar under Section 59 of the MRTU
& PULP Act would be attracted and the Industrial Court
committed jurisdictional error in entertaining the complaint of
employee. Since, error of law is noticed, interference is
warranted in writ jurisdiction. Hence, the following order :
ORDER
i. Writ Petition No.3227/2000 is allowed.
ii. Rule is made absolute in terms of prayer clause (ii)
with no order as to costs.
*sdw (KUM. INDIRA JAIN, J)
