1. This petition under Art. 227 of the Constitution of India impugns an order of the Industrial Court, dated 24 December, 1982, dismissing the Complaint (ULP) No. 272 of 1980 made by the petitioners before the Industrial Court, Maharashtra, under the provisions of the Maharastra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (hereinafter referred to as the Act.)

2. The first respondent is the Municipal Commissioner of the Bombay Municipal Corporation and the second respondent is the Executive Health Officer employed therein.

3. In the Health Department of the Bombay Municipal Corporation, there is a post of “chief school clinic organiser.” Below this, there are posts of assistant school clinic organisers. Prior to March 1978, the assistant school clinic organisers were promoted to the post of school clinic organisers merely on the basis of seniority and there was no specific qualifications for the post other than that they should have passed S.S.C The employees of the Municipal Corporation of Greater Bombay are the members of several unions, one of them being the petitioner-union. Respondents 4 to 7 were all working at the relevant time as assistant school clinic organisers, and they were not members of the petitioner-union. They were members of another union known as Bombay Municipal Subordinate Staff Union.

4. In the meeting held on 14 March, 1978, between the officers of the Bombay Municipal Corporation and the representatives of the petitioner-union, it was agreed that, for appointment to the post of assistant school clinic organiser under the medical officer (school), only persons who had passed S.S.C with English and possessing nursing qualification or had 5 years' experience as auxiliary nurse, should be considered. As a result of further discussion, it was agreed that an assistant school clinic organiser would be eligible far promotion to the post of school clinic organiser if he/she was:

(i) S.S.C with English; and

(ii) possessed nursing qualification or had worked as auxiliary nurse for 5 years.

It was also agreed that two-thirds of posts of the assistant school clinic organisers should be earmarked for persons with the first set of qualifications and one-third for those possessing the second set of qualifications. It was agreed that these criteria would be implemented for future promotions. What was agreed in this meeting was recorded in the minutes of the said date and confirmed in correspondence between the parties.

5. Although the first and second respondents had agreed to the revised criteria as incorporated in the minutes of the meeting, dated 14 March, 1978, when it came to the question of promoting an assistant school clinic organiser to the post of a school clinic organiser, the first respondent appointed the third respondent, Smt. S.B Kowly, as school clinic organiser, with effect from 1 July, 1980 Smt. Kowly did not hold nursing qualification, which was one of the criteria agreed upon in the meeting of 14 March, 1978, Aggrieved by this action of the Bombay Municipal Corporation, the petitioners filed a Complaint (ULP) No. 272 of 1980 before the Industrial Court, Bombay, under S. 28 of the Act read with item (9) of Sch. IV of the Act. The complainants alleged that, as spelt out from the aforestated minutes of the meeting, dated 14 March, 1978, and from the correspondence between the petitioner-union and the Bombay Municipal Corporation, there was an agreement that the post of school clinic organiser would be filled in only by appointment of an assistant school clinic organiser who was qualified in terms of the recorded minutes of the meeting, dated 14 March, 1978. It was alleged in the complaint that the third respondent did not possess such qualification, and, therefore, the appointment amounted to failure to implement the agreement between the petitioner-union and the Bombay Municipal Corporation. The petitioner-union, therefore, sought reliefs of declaration and an order setting aside the promotion granted to the third respondent and the farther order that the first and second respondents be restrained from promoting any assistant school clinic organisers to the post of school clinic organiser if he/she did not possess the qualifications prescribed by the minutes of the meeting, dated 14 March, 1978.

6. Before the Industrial Court, although, initially only respondents 1, 2 and 3 were made parties to the complaint, respondent 4, 5, 6 and 7, who were also working at the relevant time as assistant clinic organisers, moved an application and had themselves impleaded as respondents to the complaint before the Industrial Court, as they were likely to be affected by any decision rendered by the Industrial Court. The Industrial Court, after having considered the matter, came to the finding that the minutes of the meeting, dated 14 March, 1978, and the correspondence between the petitioner-union and the Bombay Municipal Corporation spelt out an agreement within the meaning of item (9) of Sch. IV of the Act. The Industrial Court, however, took the view, that, prior to the meeting of 14 March, 1978, the established practice and usage was that any assistant school clinic organiser was eligible to be promoted to the post of school clinic organiser merely by seniority without the requirement of any additional qualification. This practice was given a go-by by the agreement evidenced by the minutes of the meeting, dated 14 March, 1978, which were arrived at only between the Bombay Municipal Corporation and the petitioner-union. He also held that respondents 3 to 7 were not members of the petitioner-union, and, consequently, any agreement between the Bombay Municipal Corporation and the petitioner-union was not enforceable upon them, in view of the provisions of S. 9-A of the Industrial Disputes Act, 1947 The learned Judge of the Industrial Court took the view that S. 9-A mandatorily required an employer to give the notice in the prescribed manner if any change was sought to be made in any condition of service applicable to the workman with regard to any of the industrial matter specified in the Third Schedule to the Industrial Disputes Act, 1947. By the introduction of the new criteria under the agreement between the Bombay Municipal Corporation and the petitioner-union, there was a change introduced with regard to the service condition applicable to the non-members of the petitioner-union, inasmuch as the existing practice of promoting assistant school clinic organiser merely by seniority had been withdrawn. This, in the view of the learned Judge of the Industrial Court, amounted to a contravention of S. 9-A of the Industrial Disputes Act. Consequently, the agreement between the Bombay Municipal Corporation and the petitioner-union, being in contravention of the provisions of the applicable statute, was not enforceable on non-members of the petitioner-union or even the Bombay Municipal Corporation, for that matter. In this view of the matter, the learned Judge dismissed the complaint. Being aggrieved thereby, the petitioner-union has moved this petition under Art. 227 of the Constitution of India to challenge the said decision of the Industrial Court.

7. Sri Dharap, learned advocate appearing for the petitioner-union, emphasised the fact that Industrial Court had recorded a finding in favour of the petitioner that the minutes of the meeting, dated 14 March, 1978, and the correspondence did spell out an agreement. He urged that, once the Industrial Court came to the conclusion that there was an agreement, then the Court had to merely examine whether the agreement had been implemented or if there was failure to implement the said agreement and grant relief if there was failure to implement the agreement. In the petitioner's case, admittedly, there was failure to implement the said agreement, as respondent 3, who was promoted to the post of school clinic organiser, admittedly, did not possess the qualifications prescribed by the said agreement. Sri Dharap, therefore, submitted that the Industrial Court erred in not making a declaration and not granting the reliefs prayed for in the complaint and in dismissing the complaint.

8. I am afraid, the contention advanced by the learned, advocate for the petitioner is too simplistic to accept. It cannot be gainsaid that the Industrial Court, being a Court established by law, is equally bound by the other laws in force in this country. It also cannot be forgotten that the Industrial Court can enforce, albeit by the special machinery created by the Act, only what would otherwise be an enforceable agreement in law. As has been rightly found by the Industrial Court in the instant case, the agreement arrived at between the Bombay Municipal Corporation and the petitioner-union was in contravention of the provisions of a binding statute, viz., S. 9-A of the Industrial Disputes Act, 1947.

9. Sri Dharap's protestations to the contrary notwithstanding, I am of the view that the provisions of the Indian Contract Act, 1872, cannot be ignored by the Industrial Court despite the wide latitude possessed by it in certain other matters. Section 2(e) provides that every promise and every set of promises, forming the consideration for each other, is an agreement, and S. 2(g) defines an agreement not enforceable by law as void. In the instant case, as a result of bargaining — undoubtedly, for valuable consideration in the form of mutual promises — the petitioner-union arrived at the agreement as found by the Industrial Court. If the Industrial Court, upon a proper assessment of the material before it, records a finding that the agreement which is sought to be enforced by the machinery created under the provisions of the MRTU & PULP Act is contrary to statute, then the Industrial Court not only cannot ignore the provisions of S. 23 of the Indian Contract Act, but it is also obliged to follow the provisions thereof. Section 23 of the said Act provides that the consideration or object of an agreement is lawful, unless—

(a) it is forbidden by law; or

(b) it is of such a nature that, if permitted, it would defeat the provisions of any law; or

(c) it is fraudulent; or

(d) it involves or implies injury to the person or property of another; or

(e) the Court regards it as immoral, or opposed to public policy.

The section further declares that, in each of these cases, the consideration or object of an agreement is stated to be unlawful, and every agreement, of which the object or consideration is unlawful is void. By applying the test laid down in S. 23 of Indian Contract Act for more than one reason, the Industrial Court was justified in coming to the conclusion that the agreement was void and unenforceable. Having arrived at this conclusion, rightly the Industrial Court declined to enforce the said void agreement under the machinery created by the MRTU & PULP Act. In my view, even the special machinery, created under the MRTU & PULP Act, cannot breathe life into an agreement which is void and unforceable at law. The special machinery is only intended to be an alternative, for speedy enforcement, at minimal cost, of an agreement which could have been enforced by recourse to regular Courts of law.

10. Looked at from any point of view, I am satisfied that the Industrial Court's reasoning cannot be faulted and the order dismissing the complaint was justified. As I am fully in agreement with the reasoning adopted by the Industrial Court, I see no reason to interfere with the order of the Industrial Court, in exercise of the powers under Art. 227 of the Constitution of India.

11. In the premises, the petition fails, and the rule granted therein is discharged. However, there shall be no order as to costs.