Full Judgment Text
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PETITIONER:
M.R. PATIL & ANR.
Vs.
RESPONDENT:
THE MEMBER, INDUSTRIAL COURT & ANR.
DATE OF JUDGMENT: 01/04/1997
BENCH:
M.K. MUKHERJEE, B.N. KIRPAL
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M.K. MUKHERJEE, J.
Leave granted.
This appeal is directed against the judgment and order
dated April 26, 1996 of the Bombay High Court (Nagpur Bench)
in W.P. (Crl.) No. 167 of 1995 whereby it rejected the writ
petition filed by the two appellants before us. Facts
leading to this appeal and relevant for its disposal are as
under.
At all material times the appellant No.1, who is an
Officer of the Indian Administrative Service, was holding
the post of the Vice Chairman-cum-Managing Director of
Maharashtra State Road Transport Corporation (’Corporation’
for short) on deputation and appellant No. 2 was the Manager
of its Nagpur retion. On or about April 1, 1992 two
recognised Workers’ Unions of the Corporation gave a joint
notice terminating their earlier settlement with the
Corporation and submitted their fresh charter of demands. On
the failure of the management of the Corporation to attend
to their demands the Unions served a notice upon the former
intimating that the workers would go on strike from the
midnight of April 12/13, 1993. A similar notice was also
given by The Maharashtra S.T. Chalak Wahak Sanghatna, the
respondent No. 2 herein, (hereinafter referred to as the
’Union’). In view of the threatened strike the Chief
Minister of Maharashtra intervened into the matter; and on
April 9, 1993 declared an interim relief of Rs. 25 crores to
the workers and asked the Corporation to work out the
modalities of its payment. Accordingly, the Corporation held
discussions with recognised Unions and decided upon the mode
of payment of the interim relief, pending final settlement.
After obtaining approval of the State Government to the same
the Corporation issued a circular on June 25, 1993 and
started making payments in terms thereof.
Assailing the above circular on the ground that payment
in terms thereof would be unjust and more favorable to the
workers affiliated to the other Unions, the Union filed a
complaint before the Industrial Court, Amaravati nuder
Section 28(1) of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (’Act’
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for short) and, along with it, filed a petition seeking
temporary relief. On that complaint, which was registered as
ULP Case No. 397/93 and the petition, the Industrial Court
passed the following order on June 29, 1993 :
"In view of the facts pleaded in
the main complaint and this
petition the effect of the
operation of the impugned circular
No. 3679 dated June 25, 1993 is
hereby stayed until July 15, 1993.
Issue notice to the respondents to
file their reply accordingly by the
said date."
Thereafter, on July 22, 1993, the Union, through its
General Secretary Shri N.M. Verma, filed a complaint before
the Labour Court, Akola under Section 48(1) of the Act
alleging that even after service of the above stay order on
the day it was made, that is, on June 29, 1993, the
Secretary of State Transport Authority, and the who
appellants had made payments in terms of the circular and
sought the following reliefs :
"The Hon’ble Labour Court may
please declare that the accused 1,
2 & 3 have wilfully disobeyed the
order of the Hon’ble Industrial
Court interim order dated 29.6.1993
in the U.L.P. case No. 397/93.
2. The Hon’ble Court may please
order against the accused No. 1, 2
& 3 to issue processs u/s 48(1) of
MRTU and PULP Act and award
punishment under the Act.
3. Any suitable order which the
Court may deem fit be passed in the
interest of justice."
On receipt of the complaint, the Labour Court issued a
notice directing the three accused, including the two
appellants, to show cause why processes should not be issued
against them. In showing cause the appellants did not give
any specific reply to the allegations made against them in
the complaint but raised a preliminary abjection as to its
maintainability on the ground that without a sanction under
Section 197 Cr.P.C. they could not be prosecuted. The other
accused however contended that he was wrongly arraigned in
the proceeding. After hearing the parties the Labour Court
passed an order on February 11, 1994, whereby it discharged
the Secretary with a finding that there was nothing on
record to show that he was in any way responsible for
willful disobedience of the order of the Industrial Court
but, issued processes against the two appellants, after
rejecting their contention based on 197 Cr.P.C..
In the mean time, the Industrial Court had, by its
order dated August 14, 1993, vacated the ex-parte interim
stay granted by it on June 29, 1993 and dismissed the
petition filed by the Union for temporary relief.
The appellants then filed two applications before the
Labor Court praying for their discharge on the grounds, that
they were not party to the proceedings before the Industrial
Court and hence its order dated June 29, 1993 was not
binding upon them and that the interim stay granted thereby
had since been vacated. By its order dated December 17, 1994
the Labour Court rejected those applications and aggrieved
thereby Court rejected those applications and aggrieved
thereby the appellants preferred a revision petition before
the Industrial Court (Amravati Bench) under Section 44 of
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the Act which was dismissed. Thereafter they moved the High
Court in its writ jurisdiction but without success. Hence
this appeal.
To answer the questions raised in this appeal it will
be pertinent to refer, at the outset, to the preamble of the
Act and its material provisions. The Act was brought on the
statute book
"to provide for the recognition of
trade Unions for facilitating
collective bargaining for certain
undertakings, to state their rights
and obligations; to confer certain
powers on unrecognised unions; to
provided for declaring certain
strikers and lock-outs as illegal
strikes and lock-outs; to define
and provide for the prevention of
certain unfair labour practices; to
constitute courts (as independent
machinery) for carrying out the
purposes of according recognition
to trade unions for enforcing the
provisions relating to unfair
practices; and to provide for
matters connected with the purposes
aforesaid."
’Recognised Union’ is defined by sub-section (13) of
Section 3 of the Act to mean a Union which has been issued a
certificate of recognition under Chapter III thereof and
’unfair labour practices’ by sub-section (16) thereof to
mean unfair labour practices as defined in Section 26.
Chapter II specifies Industrial Courts, Labour Courts and
Investigating Officers as the authorities under the Act and
in its various as the authorities under the Act and in its
various sections details the modes of their constitution and
appointments, and their duties. Chapter III deals with the
recognition of Unions and, while Section 11(1) thereof
specifies the conditions to be complied with by a Union to
gain recognition under the Act, Section 12(3) empowers an
Industrial Court to grant recognition and issue a
certificate of such recognition in the prescribed form.
Unfair labour practices are dealt with by Chapter VI and
Section 26 defines them to mean the practices listed in
Schedules II, III and IV. Section 27 debars employers, Umons
and employees from engaging in any unfair labour practice
and Section 28 of the said Chapter sets out the procedure
the Industrial Court or the Labour Court, has to follow for
dealing with complaints relating to unfair labour practices.
According to the procedure laid down in Section 28, any
Union or any employee or any employer or any Investigating
Officer may file a complaint against a person who has
engaged in or is engaging in any unfair labour practice
before the Court competent to deal with such complaint
either under Section 5, or as the case may be, under Section
7. On such complaint the Court may, of its own take a
decision, which would by in the form pf an order; or if it
so considers necessary, may first cause an investigation
into the said complaint to be made by the Investigating
Officer and direct that a report be submitted by him to
enable it to take such a decision. Sub-section (7) of the
above Section forbids the civil or criminal court from
quashing the order so made. In view of Section 29 the above
order of the Court shall be binding on, inter alia, all
parties to the complaint and those summoned to appear in
Court. Section 30 of the Act formulates the nature of orders
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the Industrial Court and Labour Court can pass pursuant to
their decisions and so far as it is relevant for our
purposes it reads as under :
"(1) Where a Court decides that any
person named in the complaint has
engaged in, or is engaging in, any
unfair labour practice, it may in
its order -
XXX XXX XXX
(b) direct all such persons to
cease and desist from such unfair
labour practice, and take such
affirmative action (including
payment of reasonable compensation
to the employee or employees
afected by the unfair labour
practice, or reinstatement of the
employee or employees with or
without backwages, or the payment
of reasonable compensation), as may
in the opinion of the Court be
necessary to effectuate the policy
of the Act;
XXX XXX XXX
(2) In any proceeding before it
under this Act, the Court may pass
such interim order (including any
temporary relief or restraining
order) as it deems just and proper
(including directions to the person
to withdraw temporarily the
practice complained of, which is an
issue in such proceeding), pending
final decision:
Provided that, the Court may, on an
application in that behalf, review
any interim order passed by it.
Section 48 (1) of the Act, with which we are primarily
concerned in this appeal, provides that any person who fails
to comply with any order of the Court in clause (b) of sub-
section (1) or sub-section (2) of section 30 of the Act
shall, on conviction, be punished with imprisonment which
may extend to three months or with fine which may extend to
five thousand rupees.
Chapter VIII of the Act relates to the powers of
Industrial Court and Labour Court to try offences under the
Act and Section 38 specifically empowers a Labour Court to
try offences punishable under the Act within the limits of
whose jurisdiction it is committed. Section 39 relates to
cognizance of the offences committed under the Act and it
reads as under:
"No Labour Court shall take
cognizance of any offence except on
a complaint of facts constituting
such offence made by the person
affected thereby or a recognised
union or on report in writing by
the Investigating Officer."
The powers of and procedure to be followed by the
Labour Court for trial of such offences is laid down in
Section 40, which is extracted below:
"In respect of offences punishable
under this Act, a Labour Court
shall have all the powers under the
Code of Criminal procedure, 1898, V
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of 1898, of a Presidency Magistrate
in Greater Bombay and a Magistrate
of the First Class elsewhere, and
in the trial of every such offence,
shall follow the procedure laid
down for in Chapter XXII of the
said Code of summary trial in which
an appeal lies; and the rest of the
provisions of the code shall so far
as may be, apply to such trial."
Section 42 provides that notwithstanding anything
contained in Section 40, and appeal shall lie to the
Industrial Court against an order of conviction or acquittal
recorded by the Labour Court as also for enhancement of
sentences awarded by the Labour Court. The other section to
which reference is required to be made is Section 44, which
empowers the Industrial Court to exercise superintendence
over all Labour Courts.
From a conspectus of the provisions of the Act it is
manifest that if on a complaint filed in accordance with
Section 28, the Labour Court or the Industrial Court, as the
case may be, arrives at a decision that a person has engaged
in or is engaging in any unfair labour practice it may issue
a direction in terms of clause (b) of sub-section (1) of
Section 30 and pending final decision grant interim relief
in terms of sub-section (2) thereof. Failure on the part of
a person, who is bound by such order or direction, to comply
with it amounts to an offence for which he is liable to be
convicted and sentenced as envisaged under Section 48(1) by
a Labour Court. Cognizance of such offence, besides other
offences under the Act, cannot however be taken by the
Labour Court unless a complaint disclosing facts
constituting the offence is filed by the person affected
thereby or a recognised Union. (emphasis supplied) The only
other mode left open to the Labour Court to take such
cognizance is on the basis of a report in writing by the
Investigating Officer. Once cognizance of the offence is
taken on such complaint or report, as the case may be, the
Labour Court would have to follow the procedure laid down by
the Code of Criminal Procedure, 1973 (which now replaces the
Code of Criminal procedure, 1898).
That brings us to the merits of the appeal. Mr. Salve,
the learned Counsel appearing for the appellant, contended
that the impugned prosecution was void ab initio as the
Union was not a ’recognised Union’ within the meaning of the
Act and hence, was not legally competent to file the
complaint before the Industrial Court under Section 28 of
the Act which ultimately gave rise to the complaint before
the Labour Court under Section 48(1). According to Mr. Salve
the scheme of the Act and its various provisions clearly
envisage that complaints under Section 28 regarding unfair
labour practices can be made only by recognised Unions - or
by an employee individually if he is solely affected thereby
- and since, admittedly, the Union was not a recognised
Union it could not invoke the provisions of Section 28. In
support of his contention he drew our attention to Section
21 of the Act and relied on the judgments of this Court in
Crescent Dyes Chemicals Ltd. vs. Ramnaresh Tripathi (1993) 2
SCC 115 and Sharamik Uttarsh Sabha vs. Raymond Woolen Mills
Ltd. (1995) 3 SCC 78. In repelling the above contention Shri
N.M. Verma, General Secretary of the Union, who argued the
case himself submitted that question whether Union was
recognised or not was not material in view of the limited
scope of Section 21 and of right of ’any Union’ as appearing
in section 28 to lodge a complaint of unfair labour
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practice. to buttress his submission Mr. Verma drew our
attention to the judgment of the Bombay High Court in Akhil
Maharashtra Kamgar Union vs. Warden and Co. Ltd. (1996) 1
CLR 212 which has distinghished the judgment of this Court
in Shramik Uttarsh Sabha (supra). We need not however delve
into this aspect of the matter as in our opinion the
prosecution launched against the appellants is liable to be
quashed for the simple reason that the cognizance of the
offence under Section 48(1) allgedly committed by the
appellants was taken by the Labour court in utter breach of
Section 39 of the Act.
As discussed earlier cognizance of an offence
punishable under the Act can be taken on a ’complaint’ of
facts constituting such offence only if it is made by a
person affected thereby or a recognised Union. Admittedly,
the complaint in the instant case was filed. by a Union -
and not by an individual with the interim direction/order of
the Industrial Court. Undisputedly again, the Union is not a
recognised Union within the meaning of the Act. Indeed, in
the counter affidavit filed by it before this Court, the
Union has not denied the specific averment made by the
appellants in the Special Leave Petition, out of which the
present appeal arises, that the Union was not a recognised
Union as per the Act {Paragraph 4(b)} and its only reply
thereto was that allegation was mentioned to support its
various contentions and repel those of the appellants, it
has not produced any document - much less a certificate
issued under Section 12 - to indicate that it was granted
recogntion under the Act to entitle it to file a complaint
of facts constituting the offence under Section 48(1) and,
for that matter, to enable to Labour Court to take
cognizance thereupon under Section 39. Since the provisions
of this Section are mandatory and the Labour Court has no
jurisdiction to take cognizance of any of the offences
mentioned in the Act unless there is a complaint/report in
terms theref the cognizance in the instant case on the
complaint of the Union must be said to be without
jurisdiction.
As the above discussion of ours is sufficient to quash
the impugned prosecution we need not discuss the other
patent infirmities relating to the procedure adopted by the
Labour Court in dealing with the complaint and to the
rejection of the indefensible contention raised on behalf of
the appellant No.1 about the maintainability of the
prosecution in view of Section 197 Cr.P.C.
On the conclusion as above, we allow this appeal and
quash the impugned prosecution.