Bombay High Court
Maharashtra Suraksha Rakshak ... vs A2Z Infra Management And Services ... on 27 March, 2023
Bench: N. J. Jamadar
2023:BHC-OS:2061
20-wpl-22791-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.22791 OF 2022
Maharashtra Suraksha Rakshak Aghadi ...Petitioner
vs.
A2Z Infra Management and Services Limited
(Now know as A2Z Infraservices Limited) ...Respondent
Ms. Jane Cox i/b. Rahil Fazelbhoy, for the Petitioner
Mr. Ravish Mishra, for the Respondent.
CORAM : N. J. JAMADAR, J.
DATE : MARCH 27, 2023
P.C.:
1. Rule. Rule made returnable forthwith. With the consent of the
parties, heard finally at the stage of admission.
2. The challenge in this petition is to an ex parte judgment and
order 14th March, 2022 in Complaint (ULP) No. 318 of 2019
whereby complaint filed by the petitioner under section 28(1) read
with items 9 and 10 of Schedule IV of the Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (the Act, 1971) came to be dismissed by the learned Member,
Industrial Court at Mumbai primarily on the ground that a petition,
being Writ Petition No. 898 of 2016, assailing the award dated 12 th
February, 2015 passed in Reference (IT) No. 6 of 2006 in respect of
non implementation of which unfair labour practice was alleged,
was subjudice before this Court.
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3. Heard Ms. Jane Cox, learned counsel for the petitioner and
Mr. Ravish Mishra, learned counsel for the respondent.
4. The learned counsel for the respondent sought time to file an
affidavit in reply. However, having regard to the nature of the
impugned order and un-controverted facts, the Court declined to
grant time to file an affidavit in reply and proceeded to hear the
petition finally at the stage of admission.
5. The petitioner is a registered trade union representing 27
security guards who are employed by the respondent company. The
petitioner union raised a demand dated 26 th April, 2005 for
permanency and other benefits for 27 security guards which were
referred for adjudication to the Industrial Tribunal, Mumbai vide
Reference (IT) No. 6 of 2006. By an award dated 12 th February,
2015 the Presiding Officer, Industrial Tribunal, Mumbai was
persuaded to answer the Reference in affirmative and the 15 named
security guards were granted permanency with a direction to the
respondent to extend the benefit of permanency like other
permanent workmen of the respondent from 26 th April, 2005 along
with arrears of wages, within four months of the said order.
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6. The respondent challenged the said award by filing a Writ
Petition No. 898 of 2016. By an order dated 29 th July, 2016, this
Court was persuaded to issue rule and grant interim relief subject
to the respondent (petitioner herein) furnishing appropriate bank
guarantee acceptable to the office of Prothonotary and Senior
Master of this Court for the amount of back wages up to date, in
accordance of the impugned order.
7. The petitioner asserts the respondent did not comply with the
said direction, subject to which the interim relief was granted by
this Court. An information dated 23rd October, 2019 was obtained
under the Right to Information Act that the concerned department
of the Registry had not received nor accepted any bank guarantee
from the respondent (petitioner in Writ Petition No. 898 of 2016).
8. The petitioner, thus, filed a complaint alleging that the non-
implementation of the award dated 12th February, 2015 passed by
the Industrial Tribunal, Mumbai in Reference (IT) No. 6 of 2006
constituted unfair labour practice under items 9 and 10 of the
Schedule IV of the Act, 1971. By the impugned order, the learned
Member, Industrial Court was persuaded to dispose of the
complaint opining that in view of the pendency of the Writ Petition
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No. 898 of 2016 the complaint did not survive. The observations in
paragraph 10 of the impugned judgment spell out the reasons which
weighed with the learned Member while disposing of the complaint.
They read as under :-
10] ... .... Thus it appears that the respondent
company i.e. petitioner has not complied with the
condition stipulated by the High Court while passing
the stay order. However, it is a fact that the issue
relating to award dated 12.02.2015 passed in
Reference (IT) No. 6 of 2006 is subjudice before the
High Court. In such circumstances, I find that the
concerned workmen will be governed by the order
that would be passed in Writ Petition No. 898 of 2016.
In view of this, I find that the complaint does not
survive and accordingly I proceed to pass the
following order.
AWARD
i) Complaint stands disposed of.
ii) The rights of the concerned 15 member-employees
as derived from the award dated 12.02.2015 passed
in Reference (IT) No. 6 of 2006 are subject to the
outcome of Writ Petition No. 898 of 2016.
iii) No order as to cost.
9. Evidently, the learned Member was fully cognizant of the fact
that the respondent had not complied with the conditions subject to
which execution, operation and implementation of the award dated
12th February, 2015 in Reference (IT) No. 6 of 2006 was stayed. The
Court expressly noted that the respondent had not complied with
the conditions stipulated by this Court while granting interim relief.
Yet, the learned Member considered it appropriate to dispose of the
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complaint for the reason that the Writ Petition No. 898 of 2016 in
which award dated 12th February, 2015 was assailed, was subjudice.
10. The approach of the learned Member, Industrial Court, is
clearly erroneous. In the absence of stay to the execution, operation
and implementation of the aforesaid award, on account of default on
the part of the respondent to comply with the conditions subject to
which the said award was stayed, the aforesaid award operates with
full force and vigor. A complaint of unfair labour practice on account
of non-implementation of the said award, therefore, could not have
been disposed for the mere pendency of the Writ Petition. To do so
would amount to putting premium on non compliance.
11. For the foregoing reasons, the impugned order deserves to be
quashed and set aside. The complaint deserves to be restored to file
of the Industrial Court, Mumbai.
Hence, the following order.
ORDER
1] The impugned order in Complaint (ULP) No. 318 of 2019 dated
14th March, 2022 stands quashed and set aside.
2] The Complaint (ULP) No. 318 of 2019 stands restored to the file
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of Industrial Court, Mumbai.
3] The Industrial Court, Mumbai shall decide the said complaint on
its own merits and in accordance with law after providing an
opportunity of hearing to the parties.
4] Petition disposed.
5] No order as to costs.
(N. J. JAMADAR, J.)
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