Bombay High Court
Sulzer Pumps India Private ... vs Maheshwar Dinkar Kocharekar And ... on 1 August, 2023
Bench: N. J. Jamadar
2023:BHC-AS:21547
23-WP-5517-23.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.- 5517 OF 2023
Sulzer Pumps India Pvt Ltd and Others ...Petitioners
Vs.
Maheshwar Dinkar Kocharekar and Others ...Respondents
Mr. J. P. Cama a/w Ms. Shweta R. Rathod i/b Elixir Legal
Services, for Petitioner.
Ms. Jane Cox i/b Mr. Ghanshyam Thombare, for
Respondents.
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 25th JULY, 2023
PRONOUNCED ON:- 1st AUGUST, 2023
JUDGMENT:-
1) Rule. Rule made returnable forthwith and with the consent
of the learned Counsel for the parties, heard finally.
2) This Petition calls in question the legality, propriety and
correctness of an order dated 6th January, 2023, passed by the
learned Member, Industrial Court at Thane on an application for
interim relief (Exhibit-U-2) in the complaint (ULP) No. 109 of
2022, directing the petitioner-respondents therein to allow the
respondent Nos. 1 to 6 - complainant Nos. 7 to 12 therein to
resume their duties, allot work to them and to pay wages as paid
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to them prior to the ad-interim order dated 6 th June, 2022, and
to continue the employment of complainant Nos. 7 to 12 till the
final disposal of the complaint, save and except in case of proved
misconduct.
3) Background facts leading to this Petition can be stated in
brief as under:-
(a) For the sake of the convenience and clarity, the parties are
hereinafter referred to in the capacity in which they are arrayed
before the Industrial Court in complaint (ULP) No. 109 of 2022.
(b) The complainants Nos. 1 to 12 assert inter alia, that they
have been employed with respondent No. 1 - Company since
years. Around 145 workers are employed by respondent No. 1 on
permanent basis. The complainants and other employees are
discharging the same duties as that of the permanent employees.
However, the respondents are indulging in unfair labour
practices by designating them casual workmen. The
complainants and other similarly circumstanced workmen are
entitled to the status of permanent workmen and benefits, which
the permanent workmen are enjoying, at least from the date they
completed 240 days of work in the first calendar year. The
respondents are, however, exploiting the labour by not extending
the permanency benefits. The complainants further alleged that
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the respondents illegally terminated the services of complainant
Nos. 1 to 6 and threatened to terminate the services of
complainant Nos. 7 to 12 as well. Thus, the complainants filed
the complaint of unfair labour practices under Items 5 ,6 and 9
of Schedule-IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 ("the Act,
1971").
(c) Apprehending termination of services of complainant Nos. 7
to 12, the complainants filed an application for interim relief and
moved the Industrial Court without notice to the employer. By an
order dated 6th June, 2022, the learned Member Industrial Court
was persuaded to grant an ex parte ad-interim relief as the
learned Member was of the view that a strong prima facie case to
protect the services of complainant Nos. 7 to 12 was made out.
The Industrial Court, thus, restrained respondents from
terminating the services of complainant Nos. 7 to 12, without
following due process of law, till the respondents entered
appearance before the Industrial Court.
(d) The respondents-employer resisted the complaint and
application for interim relief by filing written statement. The
tenability of the complaint at the instance of the complainant in
the absence of the recognised union of employees or elected
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representatives having moved the Court, was called in question.
It was denied that the employer indulged in any unfair labour
practice and the complainants were entitled to the benefit of
permanency, as claimed. It was contended that the complainants
were working as casual workmen and were provided work as an
when available. The complaint of unfair labour practice, in the
context of the completion of 240 days work in a given calendar
year, was also stated to be barred by law of limitation.
(e) The employer categorically asserted that even the
complainant Nos. 7 to 12 were also disengaged by the respondent
No. 1 much prior to the service of the ad-interim order dated 6 th
June, 2022 on the respondents. The complainants had mala fide
moved the Industrial Court and served an ex parte ad-interim
order on the employer having been fully aware that they were
already disengaged of their services with the respondent No. 1-
Company. At any rate, according to the respondents, in a matter
of this nature where the services of the complainants were
already terminated, no interim relief could be granted as it would
partake the character of a final relief.
(f) By the impugned order, the learned Member, Industrial
Court repelled the challenge to the tenability of the complainant
of unfair labour practices at the instance of the complainants.
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However, the complainant Nos. 1 to 6, whose services were
terminated before filing of the complaint, were held not entitled
to any interim relief as that would amount to grant of final relief.
As regards complainant Nos. 7 to 12, the learned Member was of
the view that the material on record prima facie indicated that
the respondents-employer had raised a false plea that the
services of the complainant Nos. 7 to 12 were also disengaged
prior to the service of the ad-interim order dated 6 th June, 2022.
In any event, there was no material to show the procedure
followed by the respondents to terminate the services of
complainant Nos. 7 to 12 nor any document to evidence the
same. Since it was not the case of the respondents that the work
was not available, the learned Member considered it appropriate
to direct the respondents to allow the complainant Nos. 7 to 12 to
resume the duties especially in view of the ad-interim order
dated 6th June, 2022.
(g) Being aggrieved the employer has preferred this Petition.
4) I have heard Mr. J. P. Cama, the learned Senior Counsel for
the petitioner and Ms. Jane Cox, the learned Counsel for the
respondents at some length. With the assistance of the learned
Counsel for the parties, I have perused the pleadings and
material on record.
23-WP-5517-23.DOC
5) Mr. Cama submitted that the impugned order is an
instance of a jurisdictional error into which Labour and
Industrial Court often fall. Amplifying the submission, Mr. Cama
would urge that it is well neigh settled that during the pendency
of challenge to the termination of the services of an employee, the
industrial adjudicator can not direct reinstatement of the
employee by way of interim relief as that would amount to
granting the final relief. In a situation of this nature, according to
Mr. Cama, if eventually the industrial adjudicator finds that the
employee had been illegally terminated, appropriate orders for
reinstatement and backwages can be passed. However, during
the pendency of the challenge to the legality and validity of the
termination, the employer cannot be forced to employ the
terminated employee by way of an ad-interim order.
6) In the facts of the case, according to Mr. Cama, the
material on record indicates that ex parte ad-interim order was
not served on the employer till 7.50 pm on 9 th June, 2022.
However, before the said ex parte ad-interim order could be
served on the employer, the services of complainant Nos. 7 to 12
were already terminated. Mr. Cama would further urge that the
learned Member, Industrial Court committed a manifest error in
negativating the said claim of the employer on the ground that
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there was no material to show the procedure adopted by the
employer in terminating the services of complainant Nos. 7 to 12
and documentary evidence in support thereof as the
complainants were casual workmen and the employer was not
required to do anything but intimate verbally that they need not
report to duty as work was not available.
7) Mr. Cama made a further grievance that the employer
could have established that the complainant Nos. 7 to 12 were
already terminated and, in fact, few of them were working in
other establishment. Without providing such an opportunity, the
employer cannot be saddled with the liability to employ the
complainants and pay wages to them.
8) To bolster up the submission that, by way of interim relief,
the industrial adjudicator cannot direct the employer to reinstate
the employee by an interim order, Mr. Cama placed reliance on a
Division Bench judgment of this Court in the case of
Maharashtra State Road Transport Corporation, Nagpur Vs. Raju
Mahadeorao Bhagwatkar1.
9) Per contra Ms. Cox, submitted that it is not an inviolable
rule of law that in no case an interim order protecting the
employees from termination of their services, or for that matter,
1 2003 II CLR 797
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reinstatement of the services of an employee whose services have
been terminated in a high handed manner and in flagrant
breach of the orders of the Court, cannot be passed. Ms. Cox
submitted ordinarily where an employee has already been
terminated from service and such termination is questioned
before the Labour Court, reinstatement by way of interim relief is
not granted as that would amount to granting a final relief.
However, where the employee approaches the Court with a case
of apprehended termination, different considerations come into
play. In such a situation, the Court is empowered to protect the
services of the employee under the provisions of Section 30 (2) of
the Act, 1971.
10) In the case at hand, according to Ms. Cox, the situation is
exacerbated by the fact that despite the Industrial Court
granting an ad-interim relief, the respondents took a brazenly
untrue stand that the services of the complainant Nos. 7 to 12
were also terminated. However, the irreconcilable inconsistency
in the stand of the respondents- employer as to the time of
termination brings out the falsity in the employer's claim,
submitted Ms. Cox.
11) The legal position is absolutely clear. If the services of an
employee are terminated either post disciplinary enquiry or
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otherwise and such termination is questioned before the
Industrial Adjudicator, ordinarily it is not open for the
Court/Tribunal to direct the reinstatement of the employee and
payment of wages to such employee as the said relief would
partake the character of final relief, which can only be granted
after adjudication of the legality and validity of the termination
order. The employee, in normal circumstances, cannot be said to
be prejudiced by not granting the interim relief as in the event
the Court/Tribunal finds that the termination was illegal
appropriate redressal cannot be granted. Conversely, an order of
reinstatement by way of interim relief would lead to an
undesirable consequence of foisting of an employee where there
may be grave allegations of misconduct or ample justification for
termination of the services.
12) A useful reference can be made to the decision of the
Division Bench of this Court in the case of United Ink and
Varnish Co. Ltd Vs. Chandrashekhar Kurve and Others 2,
wherein it was observed, inter alia, as under:-
"...8. The legal position is no more res integra that inter
alia where an order of dismissal of an employee on the
ground of misconduct is passed without holding the
domestic enquiry, it is open to the employer to prove the
misconduct in the court. That being the legal right available
2 (2007) 1 CLR 503
23-WP-5517-23.DOC
with the employer, we hardly find any justification in the
order of the Industrial Court directing the employer to
reinstate the complainant and pay him wages during the
pendency of the complaint. That order, in our view, is not
justified even in exercise of the power under section 30(2) of
the MRTU & PULP Act. The order passed by the Industrial
Court, if allowed to stand, would occasion in failure of
justice in as much as despite the right having been given in
law to the employer to prove the misconduct in the court in
a case where the order of dismissal was not preceded with
by the domestic enquiry, such legal right would be seriously
prejudiced. On the other hand, if ultimately, the employer
fails to establish the misconduct and the complaint is
allowed; the order of dismissal is set aside, obviously, an
appropriate consequential order shall be passed by the
court....."
13) The aforesaid enunciation, however, cannot be construed as
an immutable rule of law that Labour and Industrial Court
cannot grant interim relief even when a strong prima facie case is
made out. Section 30 (2) of the Act, 1971 empowers the Court to
pass such interim orders including any temporary relief or
restraining order as it deems just and proper, which may include
directions to the person to withdraw temporarily the unfair
labour practice, which is complained of, pending final
adjudication of the complaint. In the face of the aforesaid explicit
statutory provision, it cannot be urged that there is an absolute
prohibition for granting an interim order restraining the employer
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from terminating the service or in a deserving case which
inexorably warrants the grant of interim relief, directing the
employer to allow the employee to resume duty. If a very strong
prima facie case is made out, the Labour/Industrial Court would
be justified in granting interim relief of aforesaid nature.
14) This position was clarified by a learned Single Judge of this
Court in the case of Dombivlinagari Sahakar Bank Ltd and
Others Vs. Lahu Keshav Rewale3 as under:-
...8. Under section 30(2) of the MRTU & PULP Act, the
Industrial Court and the Labour Court have power to grant
interim orders including directions to the person to
withdraw temporarily from the unfair labour practice which
is complained of in the proceedings. Thus, if the Industrial
Court finds that there is a strong prima facie case regarding
an Unfair labour practice, it has power to issue interim relief
to withdraw the unfair labour practice. Neither the decision
of the Division bench in the case of United Ink and Varnish
Co. Ltd. v. Chandrashekhar Kuvre and Others (supra) nor
the decision of the learned Single Judge in the case of
Mumbai Cricket Association v. Pramod G. Shinde (supra)
has laid down any absolute proposition of law that no
interim relief can be granted moment the employer seeks to
justify its conduct. If the industrial court can grant interim
relief even where there has been an properly held inquiry, to
hold that if the employer holds no inquiry or a faulty
inquiry, the industrial court cannot grant interim relief,
even if facts so warrants, will be an absurdity. There no
dispute about the proposition that as far as right to lead
3 2014 SCC Online Bom 4926
23-WP-5517-23.DOC
evidence is concerned there is no distinction between no
inquiry and defective inquiry. Ultimately it will depend upon
whether a strong prima facie case and balance of
convenience, is made out.
9. It is no doubt true that for grant of relief such as one
granted in the present case high degree of case must be
established and such relief is not to be granted casually. The
Labour Court or Industrial Court must be convinced that
the prima facie case is of such nature that it is equitable to
grant such relief......."
15) It is also of significance to note that the enunciation of law
in the case of United Ink (supra) would govern a case where the
factum of termination of service is indisputable. In the instant
case, the complainants approached the Court with a grievance
that the services of complainant Nos. 1 to 6 were illegally
terminated, and apprehending the termination of the services of
complainant Nos. 7 to 12 interim relief was sought. As would
become evident from the discussion which follows, the very fact
as to whether the services of complainant Nos. 7 to 12 were
terminated before the ad-interim protection was granted is in
serious dispute, nay, the weight of the material prima facie
suggests to the contrary.
16) At this juncture, reference to the decision in the case of
Raju Mahadeorao (supra), on which reliance was placed by Mr.
Cama, becomes necessary. The respondent therein was
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dismissed from service with effect from 23 rd June, 1994. The
dismissal was set aside by the Labour Court on 17 th June, 1996.
The Industrial Court interfered in revision and upheld the
dismissal. In a Writ Petition, the learned Single Judge of this
Court, by an order dated 11th February, 2002, directed the
parties to maintain status quo. In the meanwhile, the order of
termination dated 9th February, 2002, came to be served on the
respondent on 11th February, 2002 at 2.45 pm before the status
quo order was served on the appellant-Corporation at about 5.30
pm on 11th February, 2002. When the Writ Petition was again
listed before the Court on 30 th April, 2002, the learned Single
Judge directed the appellant to reinstate the respondent within
three weeks.
17) In the Letter Patent Appeal, the Appeal Bench of this Court
noted that, in fact, a wrong statement was made in the Petition
that the Labour Court had reinstated the respondent by way of
interim relief and since then the respondent was in the
employment of the Corporation and the said incorrect statement
appeared to have weighed with the learned Single Judge in
granting ad-interim relief of reinstatement.
18) The Division Bench went on to observe that, in the facts
and circumstances of the said case, the direction to reinstate the
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respondent by interim order was not proper. If at all, the
respondent succeeded in the Petition, he would be entitled to get
reinstatement with other reliefs as may be available in law.
19) There can be no duality of opinion about the aforesaid
propositions. However, it does not advance the cause of the
submission on behalf of the petitioner, to the extent desired by
Mr. Cama. Evidently, in the said case, the Division Bench
recorded with certainty that the termination order was passed on
9th February, 2002 and served on the respondent therein on 11 th
February, 2002 at 2.45 pm before the order of status quo was
served on the appellant-Corporation at about 5.30 pm on 11 th
February, 2002. The facts of the said case clearly indicate that
the termination order preceded the ad-interim order of status
quo as the former was passed on 9 th February, 2002 and latter
on 11th February, 2002.
20) Reverting to the facts of the case, it is pertinent to note that
the date on which the complainant Nos. 7 to 12 were allegedly
disengaged was not specifically pleaded by the respondents-
employer in the written statement. In paragraph No. 19 of the
written statement, it was contended that the complainant Nos. 7
to 12 were already disengaged by the respondent No. 1-Company
much prior to intimation of ad-interim order dated 6 th June,
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2022. Evidently, the respondent No. 1- Company did not
specifically state the date and time of disengagement of the
complainant Nos. 7 to 12. In contrast, in ground 2 (n) (pg. Nos.
12 & 13) and the affidavit in support of the Petition sworn on 21 st
July, 2023, an endeavour has been made to assert that the
complainant No. 7 and other three casual workmen were
informed on 9th June, 2022 at about 7.06 pm that they were not
required to report to duty on the next day i.e. 10 th June, 2022,
and, thereafter, under 45 minutes, the respondents were served
with the copy of the ex parte ad-interim order vide e-mail
(Exhibit -B to the affidavit).
21) In the face of the aforesaid stand, which was not placed
before the learned Member Industrial Court, it cannot be said
that the learned Member Industrial Court committed any error in
recording a prima facie finding that the respondents-employer
took an untrue stand that the services of the complainant Nos. 7
to 12 were terminated much before the ex parte ad-interim order.
Even at this stage, it is not a case of the respondent that the
services of complainant Nos. 7 to 12 were terminated before
passing of the ex parte ad-interim order on 6th June, 2022. On
the contrary, the Respondent No. 1-employer has now made an
endeavor to demonstrate that the services of complainant Nos. 7
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to 12 were terminated barely quarter to an hour prior to the
service of the ad-interim order. The time lag is too short for
comfort.
22) It is in this context, I find substance in the submission of
Ms. Cox, that inconsistency in the stand of the employer as
regards the alleged termination of the services of complainant
Nos. 7 to 12, prima facie works out retribution of the employer's
case.
23) On the merits of the matter, the learned Member, Industrial
Court found that the fact that the complainant Nos. 7 to 12 were
working with the respondents for a length of time could not be
disputed. Nor was it the case of the respondents that the work
was not available. From the perusal of the written statement, it
becomes abundantly clear that the respondents claimed, albeit
in support of the ground that the complaint was barred by
limitation that the complainant No. 7 had joined the respondent
No. 1- Company in January, 2011 and complainant No. 12 in
October, 2009. This stand lends prima facie credence to the
claim of the complainants that their services were extracted as
causal workmen for years together without extending the benefit
of permanency. No allegation of misappropriation or grave
misconduct is attributed to the complainant Nos. 7 to 12. The
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element of balance of convenience thus tilts in favour of the
complainant Nos. 7 to 12. Nor the respondents-employer would
suffer an irreparable loss.
24) In the totality of the circumstances, where the learned
Member, Industrial Court has exercised the discretion to grant
interim relief, especially in the context of the apparent non-
compliance of the ex parte ad interim order dated 6th June, 2022,
and appropriately moulded the relief, I do not find any justifiable
reason to interfere with such discretionary order.
25) Resultantly, the Petition fails.
26) Hence, the following order.
ORDER
i) The Petition stands dismissed.
ii) Rule discharged.
iii) No order as to costs.
[N. J. JAMADAR, J.]
