Rallis India Ltd., Midc, Phase Ii, ... vs Narendra Madanlal Sharma And ...
2018 Latest Caselaw 710 Bom

 Judgment                                      1                 wp4852.2015.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO. 4852/2015


 PETITIONERS                   :    1] Rallis India Ltd.,
                                       MIDC, Phase II,
                                       Akola, District Akola,
                                       Through its Vice President- HR & BE

                                    2] Vice President,
                                       H.R.& Business Excellence, 
                                       Rallis India Ltd.,
                                       156/157, Nariman Bhavan,
                                       15th  Floor, Nariman Point,
                                       Mumbai-21



                               ...V E R S U S...



 RESPONDENTS                   :    1] Narendra Madanlal Sharma
                                       Aged about 48 years, 
                                       R/o BG-5/49-A, Paschim Vihar,
                                       New Delhi-110063

                                    2] Member, Industrial Court, Akola,
                                       At & Post Akola, District Akola

                                    3] Presiding Officer,
                                       Labour Court, Akola,
                                       At & Post Akola, District Akola

 ===================================
             Shri R.B. Puranik, Advocate for the petitioner
       Shri N.R. Mankar, Adv. h/f Shri R.G. Bagul, Adv. for the 
                           respondent no. 1
            Miss H.N. Prabhu, AGP for the respondent nos. 2 and 3
 ===================================




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  Judgment                                      2                  wp4852.2015.odt


                                          CORAM:- Z.A. HAQ,J.

th DATED :- 19 JANUARY, 2018

ORAL JUDGMENT :-

Heard.

Rule. Rule made returnable forthwith.

2] The respondent no. 1-employee has filed a complaint

before the Labour Court under Section 28 read with Item 1 of

Schedule-IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (hereinafter

referred as "the Act of 1971") seeking declaration that the order

dated 01/06/2010 issued by the employer dismissing the

employee from service is illegal. The employee has sought the

relief as stated in the complaint.

3] In this complaint, the employer had filed an application

(Exh. 67) contenting that the complaint is not maintainable and

praying that the complaint be dismissed, or in the alternative the

issue regarding the maintainability of the complaint be framed.

Judgment 3 wp4852.2015.odt

In the earlier round of litigation in 1999, a reference

was made to the Industrial Tribunal at Delhi regarding a dispute

between the present petitioners (employer) and the present

respondent no. 1 (employee) in respect of transfer of the

employee. The Industrial Tribunal at Delhi passed an award on

06/01/2004, answering the reference in favour of the respondent

no. 1-employee and had held that the transfer of the respondent

no. 1-employee was unjustified. This order was challenged by the

employer before the High Court at New Delhi but the order passed

by the Industrial Tribunal was not interfered with.

Relying on the award passed by the Industrial Tribunal,

Delhi, the Labour Court had passed an order on 10/09/2012 and

had rejected the application (Exh. 67). This order was challenged

by the employer in revision before the Industrial Court. By order

dated 05/02/2013, the Industrial Court had partly allowed the

revision application, had set aside the order passed by the Labour

Court on 10/09/2012 and had directed the Labour Court to frame

issue on the point of status of the complainant/employee and to

decide it as preliminary issue.

Accordingly, the Labour Court framed the issue and

decided it by order dated 10/02/2014. The Labour Court held that

Judgment 4 wp4852.2015.odt

the respondent no. 1-employee is a "Workman" within the

meaning of Section 2 (s) of the Industrial Disputes Act, 1947. This

order was challenged by the employer before the Industrial Court

in revision which is dismissed by the impugned order.

4] The submission on behalf of the respondent no. 1-

employee is that the establishment in which he is employed is an

Agro Chemical Division and is pharmaceutical industry and it is

covered within the meaning of "establishment" as per Section 2

(a) of the Sales Promotion Employees (Conditions of Service) Act,

1976 (hereinafter referred as "the Act of 1976"). It is submitted

that as the Act of 1976 is applicable to the establishment in which

the respondent no. 1-employee is working, as per Section 3(5) of

the Act of 1971, he can approach the Labour Court for redressal of

his grievance. It is argued that the Subordinate Courts have rightly

decided the issue and this Court need not interfere with the

impugned orders.

5] The learned advocate for the petitioners-employer has

submitted that the Act of 1976 is applicable only to the

pharmaceutical industries and to any other industry which is

Judgment 5 wp4852.2015.odt

notified, and as the respondent no. 1-employee is appointed in

Agro Division and not in pharmaceutical industry and as the

establishment where the respondent no. 1-employee is working is

not notified as an "establishment" under the Act of 1976, the

respondent no. 1-employee cannot contend that the Act of 1976 is

applicable to the establishment where he is working.

6] Normally, this Court is loathe in entertaining the

challenge to the order passed on preliminary issue, however as the

issue raised by the petitioners-employer is regarding jurisdiction of

the Labour Court to entertain and decide the complaint, the

legality of the impugned order is required to be examined.

After hearing the learned advocates for the respective

parties and examining the material on record, I find that the

contentions of both the parties are not supported by sufficient

material on record. The respondent no. 1-employee is appointed

by the petitioner no. 1-Rallis India Ltd. At this stage, I find that the

material on record is not sufficient to examine whether the

petitioner no. 1-Rallis India Ltd., can be held to be "establishment"

as per Section 2 (a) of the Act of 1976. Therefore, the matter is

required to be remanded to the Labour Court to enable the parties

Judgment 6 wp4852.2015.odt

to substantiate their contentions in respect of the preliminary

issue. I am conscious that once the Industrial Court has remanded

the matter to the Labour Court for fresh decision on the

preliminary issue, however in the facts of the case as recorded

above, another remand by this Court cannot be avoided.

Hence, the following order is passed:-

O R D E R

1] The impugned orders are set aside.

2] The matter is remanded to the Labour

Court, Akola for deciding the preliminary issue afresh.

3] The petitioners and the respondent no. 1

shall appear before the Labour Court, Akola on

13/03/2018 at 11:00 a.m. and abide by further

orders/instructions in the matter.

4] The parties are at liberty to produce

additional evidence/documents on record and examine

Judgment 7 wp4852.2015.odt

further witnesses, if so advised.

5] The Labour Court shall decide the

preliminary issue till 18/05/2018.

The writ petition is disposed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

Ansari