Bombay High Court

The National Sports Club Of India vs Mukesh Jadhav on 27 March, 2023

Bench: N. J. Jamadar

2023:BHC-OS:2078
                                                                         25-WPL5622-2023.DOC

                                                                                              Santosh
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION


                                    WRIT PETITION (L) NO. 5622 OF 2023

                      The National Sports Club of India
                      Having its registered office at Lala
                      Lajpatrai Marg, Worli, Mumbai 400 018                         ...Petitioner
                                                  Versus
               1      Mukesh Jadhav
                      Aged : 44 years, Room No.96 6/6,
                      G-Block, V. P. Nagar, L. L. Road, Worli,
                      Mumbai - 400 018.
               2      Hitesh Dave
                      Age : 28 years, Advi Chawl, Shiv Bhole
                      Mitramandal, Hindustan Chowk,
                      Mulund (W), Mumbai - 400 082.
               3      Ashish Ruke
                      Age : 33 years, Sainath Chawl
                      Committee, Datta Mandir Road,
                      Ambedkar Nagar, Appapada, Malad (W),
                      Mumbai - 400 097
               4      Gitesh Shinde
                      Age : 32 years, Room No.924/7, H-Block
                      V. P. Nagar, Worli, Mumbai 400 018
                                                                               ...Respondents

               Mr. S. S. Pakale, Senior Advocate, a/w P. N. Salgaonkar, Pratik
                     Salgaonka, i/b Salgaonkar & Co., for the Petitioner.
               Ms. Jane Cox, i/b Ghanashyam Thombare, for the
                     Respondents.

                                                           CORAM:    N. J. JAMADAR, J.

DATED : 27th MARCH, 2023 JUDGMENT:-

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally at

the stage of admission.

25-WPL5622-2023.DOC

2. By this petition under Article 227 of the Constitution of

India the petitioner assails the legality, propriety and

correctness of the order dated 20th February, 2023 passed by

the learned Member, Industrial Court, Mumbai, on an

application (Exhibit-C-5) for impleading Maharashtra Rajya

Rashtriya Kamgar Sangh (INTUC), a recognized union, as a

party respondent to Complaint (ULP) No.272 of 2022, whereby

and whereunder the said application preferred by the petitioner

came to be rejected.

3. Shorn of superfluities, the facts are:

(a) The petitioner is a Club, and Society registered under

Maharashtra Co-operative Societies Act, 1960 ("the Act, 1960").

The petitioner employs about 386 employees. The Maharashtra

Rajya Kamgar Sangh is the recognized Union of the employees of

the petitioner. The petitioner entered into a settlement with the

recognized Union on 26th November, 2018. Pursuant thereto 37

temporary workmen were made permanent in the services of the

petitioner club with effect from 19th February, 2019. After more

than three years, the petitioner alleges, 13 out of the aforesaid

37 employees filed a complaint alleging unfair labour practices

under Items 5 and 9 of Schedule-IV of the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour

25-WPL5622-2023.DOC

Practices Act, 1971 ("the Act, 1971"). It was alleged, inter alia,

that the petitioner has signed three settlements with the

recognized Union. The service conditions of the newly made

permanent workers are far less favourable than the settlements

signed with the workers made permanent in the previous lot.

(b) The petitioner preferred an application for impleading

Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC) as a party

respondent to the said complaint asserting, inter alia, that the

complainants were made permanent pursuant to the

settlements arrived at by and between the petitioner and the

recognized Union. The complainants were challenging the terms

of the settlement under which they were made permanent. It

was, therefore, necessary to implead the recognized Union as it

was a necessary party.

contending that the recognized Union is not an interested party

as the recognized Union signed the settlements with the

petitioner, which are against the settled principles of law.

(d) By the impugned order the learned Member,

Industrial Court was persuaded to reject the application

primarily on the ground that there was no allegation against the

recognized Union, and that the presence of the recognized Union

25-WPL5622-2023.DOC

was not necessary for a complete and effectual decision of the

complaint.

4. Being aggrieved the petitioner has invoked the writ

jurisdiction of this Court.

5. I have heard Mr. Pakale, the learned Senior Advocate for

the petitioner, and Ms. Cox, the learned Counsel for the

respondent. With the assistance of the learned Counsel for the

parties, I have perused the material on record including the

averments in the Complaint (ULP) No.272 of 2022 and the

impugned order.

6. Mr. Pakale, the learned Senior Advocate, would urge that

the finding of the learned Member, Industrial Court, that there

are no allegations against the recognized Trade Union and

therefore the recognized Trade Union was not a necessary party

is erroneous. Taking the Court through the averments in the

Complaint (ULP) No.272 of 2022 and the reply filed in opposition

to the application for impleadment, Mr. Pakale strenuously

submitted that the presence of the recognized Union is

indispensable for a complete and effectual adjudication of the

complaint.

7. Ms. Cox, the learned Counsel for the respondent,

countered the submissions on behalf of the petitioner. It was

25-WPL5622-2023.DOC

urged that the settlements between the petitioner and the

recognized Trade Union are the matters of record. The

complaint was, inter alia, of unfair labour practice by showing

favouritism and partiality to one set of workers manifest in the

settlements entered into by the recognized Trade Union. In the

circumstances, the presence of the recognized Union was wholly

unwarranted. Ms. Cox further submitted that the impleadment

of the recognized Trade Union is sought with a design to delay

the disposal of the proceedings.

8. I have given anxious consideration to the rival

submissions. There is not much controversy over the

foundational facts. Indisputably, Maharashtra Rajya Rashtriya

Kamgar Sangh (INTUC) is a recognized Trade Union of the

employees employed at the petitioner's establishment.

Incontrovertibly, the recognized Union has entered into

settlements with the petitioner. Indubitably, the complaints in

Complaint (ULP) No.272 of 2022 were extended permanency on

the basis of the settlement arrived at by and between the

petitioner and the recognized Trade Union. What the

complainants essentially allege is the disparity in the

dispensation extended to them.

25-WPL5622-2023.DOC

9. In the backdrop of the aforesaid uncontroverted facts,

whether the Industrial Court was justified in declining to

implead the recognized Union as a party respondent to the

application? Undoubtedly, addition of a party is not a matter of

initial jurisdiction but one of judicious discretion. A necessary

party is one, in the absence of whom, no effective order can be

passed and whose presence is necessary for a complete and

effectual adjudication of the dispute. When a recognized Union

is sought to be impleaded, in a dispute involving the employees

who were/are its members and the employer, considerations

slightly different than the general principles which govern the

addition of a party come into play. A recognized Trade Union

carries certain privileges. A few category of disputes or for that

matter complaints of unfair labour practices, can only be raised

by a recognized Union.

10. In the case at hand, it is indisputable that the rights and

benefits, in respect of which unfair labour practices are alleged,

emanate from the settlements entered into by the recognized

Union with the petitioner. The tenor of the complaint is that the

settlements under which permanency benefits were extended to

the complainants were less favourable than the co-employees,

who were granted permanency benefits in the past. In essence,

25-WPL5622-2023.DOC

the legality and validity of the settlements entered into by the

recognized Trade Union with the petitioner is sought to be

assailed.

11. If the aforesaid context of the dispute is kept in view, I find

it difficult to subscribe to the view taken by the learned Member,

Industrial Court. It is not necessary that there must be

allegation of mala fide against the recognized Union in the

execution of the settlements. If the tenor of the allegations, by

and large, implies that the recognized Union did not execute the

settlement in the best interest of the employees and on that

count the legality and validity of the settlement is questioned

and the employer is charged with indulging in unfair labour

practices, the recognized Union deserves an opportunity of

hearing. In any event, the question of unfair labour practices

which is rooted in the alleged favouritism on account of the

execution of the settlements can not be effectually and

completely decided without commenting upon the propriety of

entering into such settlements.

12. In my view, the learned Member, Industrial Court, was not

justified in distinguishing the judgment of this Court in the case

of Maharashtra General Kamgar Union vs. Abott Laboratories (I)

25-WPL5622-2023.DOC

Ltd. and Ors.1. In the said case, albeit in a dispute between a

recognized and unrecognized Union, this Court had inter alia,

observed that where allegations have been made against a party

and the possibility of those allegations being inquired into and

the finding thereon being made the foundation of any order

that may be passed, that party must necessarily be heard. That

party cannot be heard unless it is made a party to the

proceedings.

13. If there was any doubt as to whether the complainants

attributed impropriety, in the least, to the recognized Union that

is set at rest by the affidavit-in-reply on behalf of the

respondents wherein it was categorically asserted that the

recognized Union signed the settlements which were against the

principles of law.

14. I am, therefore, impelled to hold that the Industrial Court

did not properly exercise the discretion in rejecting the

application for impleadment.

15. Ms. Cox submitted that the impleadment of the recognized

Union may unnecessarily delay the disposal of the complaint

and the interim application preferred therein. This

1 1986 II CLR 468.

25-WPL5622-2023.DOC

apprehension can be taken care of by issuing appropriate

directions.

16. Hence, the following order:

:ORDER:

(i) Petition stands allowed.

(ii) The impugned order stands quashed and set aside.

(iii) Application (Exhibit-C5) stands allowed.

(iv) The respondent - complainant shall implead

Maharashtra Rajya Rashtriya Kamgar Sangh

(INTUC) as a party respondent to the application

within a period of one week from the date of

uploading of this order.

        (v)    Notice be served on the Maharashtra Rajya Rashtriya

               Kamgar           Sangh   (INTUC)    within      a    week       of    its

               impleadment.