Divisional Commissio... v. Industrial Court, Na..., Bombay High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Writ Petition No. 2607 of 1988

Attorney(S)

Sri V.G Wankhede.
Sri B.M Khan.

Judges

Sri A.A Desai, J.

Acts

S. 28 read with item (9) of Sch. IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred
S. 14 of the Administrative Tribunals Act, 1985,

See more information ...

Smart Summary

Factual and Procedural Background

The petitioner (Divisional Controller and competent authority) conducted a departmental enquiry into the conduct of respondent 2 arising from an accident on 8 July 1984 while driving State Transport Bus No. MHQ 8326, which resulted in the death of a Luna moped driver. The departmental enquiry found the charges proved. On 25 March 1988 the petitioner issued a show-cause notice proposing the punishment of dismissal and called upon respondent 2 to submit his explanation within three days.

Instead of replying to the show-cause notice, respondent 2 filed a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the Act), alleging that the Discipline and Appeal Rules constituted an agreement within the meaning of item (9) of Schedule IV and that there was a total absence of good and sufficient reasons for proposing punishment. He sought a declaration that the petitioner had engaged in an unfair labour practice under item (9) of Schedule IV and sought quashing of the show-cause notice. Respondent 2 also sought interim relief under Section 30(2) of the Act, asking the petitioner to be directed to desist from taking action pursuant to the show-cause notice.

On 8 April 1988 the learned Member of the Industrial Court passed an ex parte order directing the applicant (respondent 2) to first submit a reply to the show-cause notice and directing the non-applicant (petitioner) to consider it; however, the Industrial Court ordered that any decision pursuant to the impugned show-cause notice was not to be implemented until further order. The Industrial Court also issued notice to the petitioner.

The petitioner filed a reply contending that the complaint was not maintainable under Section 28 read with item (9) of Schedule IV, asked for the ex parte order to be set aside and for permission to pass the final order. The Industrial Court fixed and adjourned the complaint several times and the application order was not considered; the petitioner thereupon presented the instant petition challenging the Industrial Court's order and raising the question whether a contemplated action for dismissal or discharge amounts to an unfair labour practice under Section 28 read with item (9) of Schedule IV.

Legal Issues Presented

Whether a contemplated, proposed or apprehended action for dismissal or discharge amounts to an "unfair labour practice" cognisable under Section 28 read with item (9) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Whether the Industrial Court acted properly in passing an ex parte interim order on 8 April 1988 restraining implementation of any decision pursuant to the show-cause notice before the disciplinary authority had taken a final decision.

Arguments of the Parties

Respondent's Arguments

The Discipline and Appeal Rules constitute an agreement between the parties as contemplated by item (9) of Schedule IV of the Act.
Clause (7) of the rules provides that punishment can be awarded only for good and sufficient reasons; there is a total absence of good and sufficient reasons in the present case.
There has been a failure to implement the terms of the discipline and appeal procedure (which the respondent treats as an agreement), and therefore the petitioner has engaged in an unfair labour practice under item (9) of Schedule IV.
The respondent sought a declaration of unfair labour practice and quashing of the show-cause notice, and also sought interim relief under Section 30(2) to restrain the petitioner from taking action.
Counsel for respondent relied on authorities (including Dharm Pal Kukrety and A.V.S. Reddy) arguing in effect that threatened or apprehended injury or action may ground relief and cited the Full Bench decision in Subha Plastics v. Nagendraprasad Dubey for the proposition that "to discharge or dismiss" includes intended, proposed or apprehended dismissal.

Petitioner's Arguments

The complaint under Section 28 read with item (9) of Schedule IV is not maintainable because Section 28 requires the occurrence of an unfair labour practice and allows complaints only after such an occurrence.
The petitioner asked for the ex parte order of the Industrial Court to be set aside and for permission to take the disciplinary authority's final decision.
The petitioner contended that the complaint was premature and that the Industrial Court acted without propriety in issuing the interim directions prior to any final order of dismissal or imposition of punishment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dharm Pal Kukrety v. Chief of the Army Staff, [1978 L. & I.C. 9]	Authority holding that mere threat of damage is enough to cause injury so as to sustain maintainability of a writ petition (in the context of Article 226).	The court observed that this decision, dealing with the scope of Article 226, was of no assistance to the question under the Act and did not help adjudicate the issue before it.
A.V.S. Reddy v. State of Andhra Pradesh, [1988 L. & I.C. 1280]	Observation by the Central Administrative Tribunal that, in view of Section 14 of the Administrative Tribunals Act, 1985, the Tribunal is a substitute for the High Court for certain purposes and that an employee can sustain action if the framing of charges suffers from constitutional infirmity.	The court treated this authority as addressing Article 226 jurisdiction and held it was not helpful for adjudicating the specific question under the Act in the present petition.
A.I.R. 1976 S.C. 206	Authority for the proposition that a petitioner challenging a show-cause notice is premature.	The court relied on this Supreme Court authority to support the view that challenging a show-cause notice before a final order is premature.
Subha Plastics v. Nagendraprasad Dubey, [1985 C.L.R. 81] (Full Bench of the Industrial Court of Maharashtra)	Full Bench held that the phrase "to discharge or dismiss" includes intended, proposed or apprehended discharge or dismissal, and reasoned that the Act's prevention objective covers apprehended acts.	The court distinguished and disagreed with the Full Bench: it held Section 28 is explicit that a person must have "engaged" or "is engaging" in an unfair labour practice (i.e., the practice must have come into being) and therefore Section 28 cannot be invoked against merely proposed or apprehended action. The Full Bench's approach was not accepted for the present petition.

Court's Reasoning and Analysis

The court's analysis is focused on the language and scheme of the Act, in particular Sections 26, 28 and 30 and the schedules that define and enumerate unfair labour practices.

The court began by emphasizing that Section 28 provides for filing a complaint within 90 days of the occurrence of an unfair labour practice. From the statutory text the court concluded that Section 28 is triggered only after the commission (occurrence) of the specified unfair labour practice. The court interpreted the phrase "has engaged or is engaging in unfair labour practice" to mean (a) that "has engaged" refers to a person who has committed the unfair labour practice, and (b) that "is engaging" means a person who is continuing with such a practice which he has committed. The court held that these phrases do not mean "likely to engage" or "going to engage."

Turning to Section 30, the court acknowledged that Section 30 empowers the Industrial or Labour Court to prevent unfair labour practices where it decides a person has engaged or is engaging in such practices, and that under Section 30(2) the Court can make interim orders directing temporary withdrawal of the practice complained of. However, the court concluded that the statutory scheme is directed to prevention of practices that have come into being (committed or continued) and not to actions that are merely proposed or likely to lead to unfair labour practices.

The court observed that unfair labour practices in relation to dismissal are specifically enumerated in the schedules (Schedules II, III and IV) and that a threatened act of discharge or dismissal would be an unfair labour practice only under item 1(a) of Schedule II; other threatened actions of dismissal that are not enumerated cannot be said to be unfair labour practices under the schedules. The court further explained that disciplinary proceedings (framing of charges, conducting enquiry, issuing show-cause notice and taking action) form a continuous process which must be allowed to reach finality and that unwarranted judicial scrutiny of each stage would frustrate the disciplinary authority's domain.

Addressing the respondent's reliance on the Discipline and Appeal Rules as an agreement under item (9) of Schedule IV, the court (for the sake of argument) assumed those rules to be an agreement but held that compliance with such norms can be examined once the disciplinary process culminates in a penal action causing injury to the delinquent. Examining compliance in advance would frustrate disciplinary proceedings and encourage abuse of process. Non-observance of norms at intermediate stages may vitiate an ultimate dismissal, but such intermediate acts, before a final punitive order, have no civil consequence cognisable under Section 28.

The court therefore concluded that the Industrial Court acted without propriety in issuing the ex parte interim directions on 8 April 1988 and in assuming jurisdiction to scrutinise a dismissal order which had not been passed. The complaint filed by the respondent was held to be premature and not maintainable under Section 28.

Holding and Implications

Holding:

The petition is allowed; the impugned order dated 8 April 1988 is set aside, and the complaint filed on 8 April 1988 is dismissed as not maintainable.

Implications:

The direct effect is that the Industrial Court's interim order restraining implementation of any disciplinary decision was quashed and the respondent's complaint under Section 28 was dismissed for being premature and not maintainable.
The decision permits the disciplinary authority to continue with the disciplinary process (including receipt of any reply to the show-cause notice, consideration thereof and final decision) without prior judicial intervention under Section 28 based on a mere apprehension of dismissal.
The court's reasoning restricts invocation of Section 28 to situations where an unfair labour practice has come into being (has been committed or is being continued) as enumerated in the schedules; merely proposed or apprehended actions do not satisfy the statutory threshold for a Section 28 complaint. The opinion emphasized that the Act and its schedules are to be read strictly and not liberally expanded to cover proposed disciplinary steps.
This opinion did not purport to set out a broader novel precedent beyond applying the statute to the facts: it determined that the particular complaint was premature and not maintainable and set aside the interim order.

Show full summary ...

Divisional Commissioner, Maharashtra State Road Transport Corporation, Wardna Division v. Industrial Court, Nagpur, And Others

1. This petition raises a question as to whether a contemplated action for dismissal or discharge amounts to an unfair labour practice, cognisable under S. 28 read with item (9) of Sch. IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act).

2. The petitioner-Divisional Controller as a competent authority held departmental enquiry into the conduct of respondent 2 leading to an accident on 8 July, 1984, while driving State Transport Bus No. MHQ 8326 resulting in death of a Luna Moped driver. In dapartmental enquiry, the charges were held to have been proved. The petitioner, therefore, taking into account the previous record and seriousness of misconduct, on 25 March, 1988, issued show-cause notice proposing punishment of dismissal. Respondent 2 thereunder was called upon to submit his say within 3 days,

3. Respondent 2 instead of submitting his explanation to show cause notice, filed complaint under S. 28 of the Act. According to him, Discipline and Appeal Rules constitute an agreement between the parties as contemplated under item (9) of Sch IV. Clause (7) of the rules provides for awarding of punishment for good and sufficient reasons. The respondent in the complaint has averred, the complainant is approaching this Hon'ble Court, mainly for the reason that there is a total absence of good and sufficient reasons for awarding punishment and, therefore, there is a failure to implement the terms of discipline and appeal procedure which is in the form of agreement between the corporation and its workmen. The respondent, therefore, sought a declaration that the petitioner has engaged in and has been engaging in the unfair labour practice enumerated under item (9) of Sch. IV. He further sought quashing of show-cause notice, dated 25 March, 1988.

4. The respondent also filed application under Sub-sec. (2) of S. 30 claiming interim relief by directing the petitioner to desist from taking action in pursuance of the show-cause notice.

5. The learned Member of the Industrial Court on the same day. i.e, on 8 April, 1988, passed the following ex parte order:

“The applicant (respondent) should first submit reply to the show-cause notice, dated 25 March, 1988 to the non-applicant and the non-applicant shall consider it and come to a decision. However, the decision of non-applicant pursuant to the impugned show-cause notice shall not be implemented until further order.”

6. The Industrial Court also issued notice, to the non-applicant petitioner.

7. The petitioner thereupon filed a reply containing that the complaint is not maintainable under S. 28 read with item (9) of Sch. IV of the Act. They prayed for setting aside the ex parte order and permitting the petitioner to pass the final order.

8. The complaint was initially fixed for 20 April, 1988, without hearing, it was adjourned from time to time and lastly it was posted on 28 April, 1988. The application order was not considered. The petitioner, therefore, presented this petition raising the question as formulated.

9. Sri Khan, the learned counsel appearing for respondent 2, original complainant, tried to support the impugned order. He invited my attention to a decision of the Allahabad High Court reported in a case of Dharm Pal Kukrety v. Chief of the Army Staff, [1978 L. & I.C 9]. The High Court while considering the scope of Art. 226 of the Constitution, held that mere threat of damage is enough to cause injury so as to sustain the maintainability of a writ petition. Sri Khan then invited my attention to the observation of the Central Administrative Tribunal in the case of A.V.S Reddy v. State of Andhra Pradesh, [1988 L. & I.C 1280]. The Tribunal has observed that in view of the provisions laid down under S. 14 of the Administrative Tribunals Act, 1985, it is the substitute for the High Court so far as the jurisdiction under Art. 226 of the Constitution and the employee can sustain the action if the order of framing charge suffers from any vires of constitutionality. In both these decisions, the authorities were dealing with the scope of Art. 226 of the Constitution. According to me, they are of no assistance to adjudicate the question involved in petition. Moreover, the Supreme Court in the case in A.I.R 1976 S.C 206, held that the petitioner challenging show-cause notice is premature.

10. Sri Khan then heavily placed reliance on the observation of the Full Bench of the Industrial Court of Maharashtra in a case of Subha Plastics v. Nagendraprasad Dubey, [1985 C.L.R 81]. The Full Bench has considered the phrase “to discharge or dismiss” appearing in item (1) of Sch. IV taking into account the grammatical connotation of the phrase, the Full Bench has held that it includes even an intended, proposed or apprehended discharge or dismissal. In reaching this conclusion, the Full Bench has mainly placed reliance on the phrase “has engaged in and is engaging” appearing in Ss. 28 and 30 of the Act. The Full Bench has further observed that the Act contemplates prevention of unfair labour practices and accordingly the prevention cannot have any meaning unless the Act contemplates law to stop it not only when the mischief is actually committed but also when it is apprehended to be committed. According to the Full Bench as per the policy of the Act, the prevention can only be before the object of unfair labour practice.

11 Section 28 of the Act provides for filing the complaint within 90 days of the occurrence of such unfair labour practice (emphasis supplied). It is thus explicit that the aggrieved person can invoke the provision only after occurrence of the specified unfair labour practice. It, therefore, follows that commission of unfair labour practice alone gives entitlement in favour of the aggrieved person to invoke S. 28. Such entitlement cannot be derived as against the proposed, contemplated, anticipated or apprehended unfair labour practice. Section 28 as considered by the Full Bench refers the phraseology “where any person is engaged or is engaging in unfair labour practice.” “Has engaged,” means the person has committed the unfair labour practice. “Is engaging in unfair labour practice” means, he is continuing with such practice which he has committed. For invoking S. 28, unfair labour practice must come into being. Section 28 does not contemplate such unfair labour practices which are in womb. The term “is engaging in unfair labour practice” does not mean “likely to engage” or “going to engage.”

12. Section 30 of the Act empowers the Court to prevent unfair labour practices. Where the Court decides any person has engaged or is engaging in unfair labour practice, as per Cl. (b) such person can be directed to cease or desist from such unfair labour practice. The person cannot be directed to cease or desist from unfair labour practice unless he has engaged himself in such practices. Perpetuating, carrying or continuing such practices can be prevented by the Industrial or Labour Court by exercising jurisdiction under S. 30. Under Sub-sec. (2), the Court can by interim order direct the person to withdraw temporarily the practice complained of. As per the policy of the Act, the scheme for prevention of unfair labour practices are envisaged under S. 30. The Act further provides punishment and prosecution against the persons who do not desist from the unfair labour practice as per the direction of the Court. The Act has thus introduced the devices for prevention of unfair labour practice. However, it is not the scheme of the Act to prevent such action which in all probability would lead to unfair labour practice. Such proposed action does not amount to an unfair labour practice as enumerated.

13. Section 26 of the Act defines unfair labour practices. Those are listed in the schedules appended thereto. Schedules II and III enumerate the unfair labour practices on the part of the employer. Unfair labour practices relating to the dismissal or discharge have been enumerated vide items 1(a), 4(a), 4(b) and 4(f) of Sch. II and item (1) of Sch. IV. The threatened act of discharge or dismissal would be unfair labour practice only under item 1(a) of Sch. II. Any other threatened action of dismissal other than enumerated under the said item, therefore, cannot be said to be an unfair labour practice. Framing of charges, conducting enquiry, issuing show-cause notice and taking action are the various stages of continuous process of disciplinary proceedings. Disciplinary proceedings once initiated must reach the finality, culminating in imposing punishment or exonerating the delinquent. Testing each stage of the proceeding as to whether they are in conformity with the norms as laid down would be an unwarranted judicial interference in the domain of disciplinary authority. The Act has very specifically demarcated the unfair labour practices. Dismissal in absence of good or sufficient reasons could be covered vide item (b) not in good faith (d) patently false reasons (g) without having regard to the nature of particular misconduct. The Labour Court alone is empowered to take cognisance of such unfair labour practice enumerated under item (1) of Sch. IV.

14. Unfair labour practice in the matter of dismissal is cognisable only for the item specifically enumerated in the schedules. The Act is semi-penal in nature. Entries in the schedules and provision cannot be construed liberally. The schedules have not specified any act or deed leading to dismissal in contravention of agreement, settlement or award as an unfair labour practice. Non-compliance of certain disciplinary rules before proposing action of dismissal cannot be comprehended as an unfair labour practice under item (9) of Sch. IV. As such action of dismissal proposed under the show-cause notice even otherwise is outside the ambit and intent of item (9) of Sch. IV.

15. To appreciate the argument, I presume that the set of rules relating to discipline and appeal constitute an agreement between the parties. Norms laid down thereunder are to be adhered to before imposing punishment. Adherence of such norms can be examined when the action is finally taken. Examining the adherence of norms in advance, practically would lead to frusrate the process of disciplinary proceedings. It would as in the instant case promote abuse of process of law.

16. Compliance of the norms kid down under the disciplinary rules can be examined when the process culminated in a penal action causing injury to the delinquent. Non-observance of norms at various stages may vitiate the ultimate action of dismissal. However, such act before taking the final action of punishment is without any civil consequence and not cognisable under S. 28 of the Act.

17. The petitioner by show-cause notice, dated 25 March, 1988, called upon the respondent to submit his say. The respondent has avoided; and approached the civil Court. Filing reply to the show-cause notice and consideration thereof and further taking decision are the mandate of disciplinary rules. The Industrial Court while passing impugned order on 8 April, 1988, acted completely without any propriety in issuing these directions. The Industrial Court further assumed the jurisdiction beforehand to scrutinise the order of dismissal which may or may not be passed by the competent authority. The order as passed is patently illegal. The order of dismissal can be looked into as per S. 28 only after passing of such order in a complaint filed within 90 days thereafter. The Industrial Court lost sight that the complaint is ex facie premature and cannot be taken cognisance of. The complaint as filed is, therefore, not maintainable.

18. In the result, the petition is allowed. The impugned order, dated 8 April, 1988, is hereby set aside. The complaint filed by the complainant on 8 April, 1988 is hereby dismissed as not maintainable.

Divisional Commissio... v. Industrial Court, Na...