Shivaji Vidyapith Shikshak Sangh ... vs Baburao Ramchandra Vadam
2023 Latest Caselaw 4141 Bom

2023:BHC-AS:12998
            SWAROOP Digitally
                    SWAROOP
                              signed by

            SHARAD SHARAD PHADKE
                    Date: 2023.04.28
            PHADKE 19:30:10 +0530
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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO.2282 OF 2023

            Shivaji Vidyapith Shikshak Sangh                           ...      Petitioner
                   versus
            Baburao Ramchandra Vadam                                   ...    Respondent

            Mr. C.G.Gavnekar, Senior Advocate with Mr. Ashutosh Gavnekar, Mr. Rohit Parab,
            for Petitioner.
            Mr. V.P.Vaidya with Ms. Shraddha Chavan i/by Mahendra Agavekar for Respondent.

                                           CORAM:        N.J.JAMADAR, J.

                                           DATE :        25 APRIL 2023

            P.C.

            1.                       Heard the learned Counsel for the parties.

2. This Petition assails the legality, propriety and correctness of judgment

and order dated 30 November 2022 passed by the learned Member, Industrial Court at

Kolhapur in Revision Application (ULP) No.97 of 2017, whereby the Revision

Application preferred by the Petitioner against an order passed by the Labour Court

on an application (Exhibit C-13) in Complaint (ULP) No.110 of 2015 dated 7 August

2017 rejecting the application for framing preliminary issue, came to be rejected.

3. The Petitioner is a Trade Union registered under the Trade Unions Act,

1926. The Respondent was working as a Clerk in the office of the Petitioner. On

account of alleged misappropriation and misconduct, a charge sheet was served on

Respondent on 1 April 2015. Inquiry Officer submitted a report on 28 October 2015

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and the Respondent was found guilty of the misconduct.

4. The Respondent filed a complaint alleging unfair labour practice under

Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (the Act of 1971) before the Labour

Court at Kolhapur. The Respondent preferred an application (Exhibit U-2) for

interim relief. By an order dated 19 December 2015, the said application for interim

relief came to be rejected. The Respondent preferred Revision Application (ULP)

No.243 of 2015. In the said Revision Application, an application for interim relief

(Exhibit U-2) was filed and by an order dated 6 June 2016, the said application came to

be allowed by setting aside the order dated 19 December 2015 passed by the Labour

Court and the Petitioner was directed not to terminate the services of the Respondent

without following due process of law, till the decision of the Revision Application and

to protect the wages of the Respondent till the disposal of the Revision Application.

5. The Petitioner carried the matter in Writ Petition No.9225 of 2016. By

an order dated 26 October 2016, the order passed by the Industrial Court was set aside

and the Revision (ULP) No.243 of 2015 was remitted back to the Industrial Court for

disposal expeditiously. In the meanwhile, the undertaking given by the Petitioner that

the wages of the Respondent would be protected, was accepted.

6. Eventually, by a judgment and order dated 30 December 2016, the

Revision Application (ULP) No.243 of 2015 came to be allowed, setting aside the

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order on interim application (U-2) passed by the Labour Court and the matter was

remanded back to the Labour Court.

7. Upon remand, in Complaint (ULP) No.110 of 2015 the Petitioner

preferred an application (Exhibit C-13) asserting that the dismissal order passed by the

Petitioner on 30 December 2015 came into force from 31 December 2016 and, thus,

the complaint become infructous and not maintainable in the eye of law. Hence, a

preliminary issue as to whether there was a cause of action to maintain the complaint

and the Labour Court had jurisdiction to hear and decide the matter be framed.

8. By an order dated 7 August 2017, the Labour Court rejected the

application, holding that the factum of dismissal of the Respondent was not brought to

the notice of the Industrial Court while deciding Revision Application (ULP) No.243

of 2015. The Labour Court was of the view that setting aside of the order dated 19

December 2015 on the application for interim relief (Exhibit U-2) (whereby the

Labour Court had declined to protect the services of the Respondent) itself implied

that the Respondent-Complainant was entitled to be in service. Consequently, the

employment of the Respondent-complainant was protected.

9. In Revision Application, the learned Member, Industrial Court did not

find any ground to interfere with the aforesaid order and, thus, dismissed the Revision

Application by the impugned order. The Petitioner has again invoked the writ

jurisdiction.

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10. Mr. Gavnekar, learned Senior Advocate for the Petitioner, strenuously

submitted that during the pendency of the proceeding, the services of the

Respondent-complainant came to be terminated by an order dated 30 December 2015.

With the dismissal of the Respondent-complainant, by an order dated 30 December

2015, the entire complexion of the dispute between the parties changed. The

maintainability of the complaint before the Labour Court under the provisions of the

Act, 1971 itself became debatable. In the circumstances, the Petitioner was justified in

seeking framing and determination of the preliminary issues.

11. Inviting the attention of the Court to the observations of this Court in

the order dated 26 October 2016 in Writ Petition No.9225 of 2016 that, on 30

December 2015, the services of the Respondent-complainant came to be terminated,

Mr. Gavnekar would urge that the Labour Court as well as the Industrial Court were in

error in observing that the factum of termination of the services of the Respondent-

complainant was not brought to the notice of the Industrial Court.

12. Mr. Vaidya, learned Counsel for the Respondent would support the

impugned order. It was urged that the stand of the Petitioner that the protection

which was granted to the Respondent by the Industrial Court during the pendency of

the Revision Application (ULP) No.243 of 2015 stood vacated by order dated 30

December 2016, is wholly incorrect and unconscionable.

13. I have given careful consideration to the submissions. It seems that the

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multiplicity of the proceedings ensued on account lack of clarity in the orders passed

in Revision Application (ULP) No.243 of 2015, dated 6 June 2016 and 30 December

2016. The question as to whether the termination order dated 30 December 2015,

which was allegedly passed by the Petitioner, was brought to the notice of the

Industrial Court, may not be of determinitive significance. It is the claim of the

Petitioner that upon ad-interim relief which was in operation till 29 December 2015

coming to an end, the Respondent - complainant was terminated on 30 December

2015 and, on that count, the tenability of the complaint before the Labour Court was

sought to be questioned.

14. In the light of the aforesaid nature of the controversy, in my view, it

would be in the fitness of things to permit the Petitioner to raise the said grounds of

tenability of the complaint and also the jurisdiction of the Labour Court to entertain

and decide the complaint on the ground of the alleged termination of the Respondent-

complainant by an order dated 30 December 2015, during the pendency of the

complaint. However, the said issues need not be tried as preliminary issues. Those

issues can also be considered along with other issues which arise for determination

while finally adjudicating the complaint.

15. Thus, the Petition stands disposed with a direction to the Labour Court

to permit the Petitioner to raise the grounds of tenability of the complaint and the

jurisdiction of the Court in view of the alleged termination order dated 30 December

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2015 and decide those issues along with other issues while finally adjudicating the

complaint.

16. Mr. Gavnekar expressed an apprehension that while deciding the

application to frame the preliminary issues, certain observations have been made by

the Courts below, which may cause prejudice to the Petitioner in prosecuting the

aforesaid grounds of objection.

17. It seems those observations have been made primarily to decide the

question as to whether the preliminary issues are required framed and decided. In any

event, it is clarified that while adjudicating the complaint, including the aspect of

tenability of the complaint and the jurisdiction of the Labour Court, the Labour Court

shall not be influenced by the observations made in the impugned order and the order

dated 7 August 2017 passed on application (C-13).

                                                      ( N.J.JAMADAR, J. )




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