TMI Blog1995 (9) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... im orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated. Held that:- - C.A. 8338 OF 1995 - - - Dated:- 15-9-1995 - Majmudar S. B. And Ray, G. N. ,JJ. JUDGMENT Leave granted. By consent of learned advocates of the parties, the appeal is finally heard and is being disposed of by this judgment. The short question involved in this appeal centers round the jurisdiction of the Labour Court functioning under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as `the Act' for short) regarding entertaining of complaints filed under Section 28(1) of the Maharashtra Act in connection with contemplated discharge or dismissal of the employees alleged to be resorted to by the employer by way of unfair labour practice, as mentioned in Item 1 of Schedule IV of the Maharashtra Act. The Labour Court in which the complaints were filed took the view that such complaints wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, M.S.R.T.C. vs. Presiding Officer Industrial Court of Maharashtra, Nagpur Anr. (1989 Mah. L.J. 798), which had taken a similar view. The respondent-workmen filed Writ Petition No. 2286 of 1989 under Article 226 of the Constitution of India. The learned Single Judge of the High Court summarily dismissed the same on August 21, 1989. The respondents carried the matter before the Division Bench of the High Court in appeal, being Appeal No. 952 of 1989. The Division Bench consisting of M.C. Pendse and S.N. Kapadia, JJ. allowed the said appeal by its decision dated March 6, 1992, wherein Pendse, J. speaking for the Division Bench, took the view that the respondents' complaints were not premature and the Labour Court had jurisdiction to entertain such complaints filed before the actual orders of dismissal or termination were passed by the employer. The order dated August 10, 1989, passed by the Presiding Officer, First Labour Court, Bombay, was set aside and the proceedings were remitted back to the First Labour Court, Bombay for disposal of the complaints on merits. The employer-company filed Special Leave Petition (C) No. 9740 of 1992 in this Court challenging the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 of the Maharashtra Act made such unfair labour practice penal. That the Labour Court under Section 30(2) could pass appropriate interim order restraining the employer from enforcing on calling upon the employer to withdraw temporarily the alleged unfair labour practice of dismissal or discharge of employee and it was not as if after discharge or dismissal, such interim relief could not be granted in an appropriate case by the Labour Court. Reliance was also placed on the decision of this Court in the case of Chanan Singh vs. Registrar, Co-operative Societies, Punjab Ors. (1976 (3) SCR 685) for submitting that even though a chargesheet is served by the employer on the concerned employee, there is still a possibility that it may not actually culminate into any discharge or dismissal and, therefore, complaint against proposed dismissal or discharge would be premature. On the other hand, the learned counsel for the respondent-employees vehemently submitted that the Maharashtra Act itself is enacted for prevention of unfair labour practices, as enumerated in the Schedules and such labour practices on the part of the employers or the trade unions of employees, as mentioned in Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Maharashtra Act, two Acts governing the relations between the employers and the employees in industries were already holding the field. One Act was the Bombay Industrial Relations Act, 1946 (`B.I.R. Act' for short) which applied to certain notified industries under the Act. Various protections were given under the B.I.R. Act to the workmen covered by the said Act. But there was no provision regarding prevention of unfair labour practices either on the part of the employers or on the part of the unions of employees. There was also a Central Act, Industrial Disputes Act, 1947 (`I.D. Act' for short) applicable to industries which were not covered by the B.I.R Act. The Maharashtra Act was passed by the legislature on February 1, 1972, being Maharashtra Act 1 of 1972. By that time industries which were covered by the I.D. Act, which was a Central Act, also did not have the benefit of any provision regarding prevention of unfair labour practices. Under the I.D. Act provision was made for reference by an appropriate Government of any industrial dispute between the employers and the employees for adjudication of competent Industrial or Labour Court, as the case may be. The "Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy of workmen to seek a reference for adjudication or for its prevention by any competent court under the I.D. Act, and all that a workman can do is to wait till the order of discharge or dismissal is passed and then he can raise a dispute under Section 2(A) in connection with his dismissal or discharge and if such dispute is referred by the appropriate Government for adjudication of the Labour Court which is entitled to adjudicate upon such dispute as per the residuary Item 6 of Schedule II to the I.D. Act, then in such a dispute it can be shown by the workman that his actual dismissal or discharge was a result of unfair labour practice as laid down by clause 5 of part 1 of the Fifth Schedule to the I.D. Act. However, there is no provision for preventing any proposed discharge or dismissal by way of unfair labour practice on the part of the employer as per the statutory scheme of the I.D. Act, even after the insertion of Chapter V(c) in that Act. On the other hand, more than a decade before the aforesaid amendment was brought in the I.D. Act, which fell short of providing for prevention of unfair labour practice, the Maharashtra Legislature as early as in 1972 enacted the Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in unfair labour practices; to constitute courts (as independent machinery) for carrying out the purposes or according recognition to trade unions and for enforcing provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid; It is hereby enacted in the Twenty-second Year of the Republic of India as follows:- The preamble of the Act clearly indicates that the Maharashtra Act is brought on the statute book with the avowed purpose of regulating the activities of trade unions and for preventing certain unfair labour practices both on the part of unions of employees as well as the employers. As laid down by Section 2(3) of the Act, the Act has to apply to the industries to which B.I.R. Act, for the time being applies and also to any industry as defined in clause (j) of Section 2 of the I.D. Act and also to the State Government which in relation to any industrial dispute concerning such industry is the appropriate Government under that Act. Thus, the Act sought to supplement and cover the field for which the concerned industries governed by the then I.D. Act and B.I.R. Act did not get any coverage and that field was obviously amongst other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a complete unfair labour practice on his part as contemplated by clause (a) of Item 1 of Schedule IV. As we have seen above, the Act is enacted with a view to prevent such unfair labour practice. Therefore, the question squarely arises as to how such an unfair labour practice of discharge or dismissal of an employee by way of victimisation can be prevented. If it is to be prevented, it has to be prevented from taking effect or getting completed. Therefore, the intervention of the Labour Court can be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by way of victimisation has not resulted into its culmination but it is in pipeline or process. Under the standing orders governing the concerned industries, before an employee can be discharged or dismissed on the ground of any misconduct, departmental enquiry has to be held. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a chargesheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. It can then b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff effected a marine policy, subject to rules one of which was that ships were not to sail from any port on the east coast of Great Britain "to" any port in the Belts between December 20 and February 15. The plaintiff's vessel sailed on February 8 for a port in the Belts, and was lost; held, that the rule in question was a warranty and not an exception; and that the word "to" in the rule meant "towards" and not "arriving at" (Colledge v. Harty 6 Ex. 205) (4) "To or towards": see R. v. M'Carthy [1903] 2 Ir. R. 156, cited INTIMIDATE." It becomes, therefore, obvious that general unfair labour practice on the part of the employer to discharge or dismiss the employee on any of the grounds listed in clauses (a) to (g) of Item 1 of Schedule IV would include any step towards or in the direction of ultimate discharge or dismissal of the employee on that ground and even before such discharge or dismissal is finally arrived at. It is not possible to accept the contention of the learned counsel for the appellant that discharge or dismissal of any employee would only mean the confirmed act of discharge or dismissal on any of these grounds and not a penultimate step taken by the employer co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roportionate to the misconduct alleged in the chargesheet. Therefore, it is not as if when such a grievance is made, the Labour Court cannot be approached for preventing such an unfair labour practice from getting culminated and that the workman is to wait till such shockingly disproportionate punishment actually comes to be imposed. Then there would be nothing left to be prevented. It would be like bolting the doors of the stable after the horses have fled. We, therefore, hold that on the express language of Item 1 of Schedule IV complaint can be filed for the alleged unfair labour practice which is in the offing and towards which a firm step is taken by the employer. It is in the light of the aforesaid scheme of Item 1 of Schedule IV that we have to turn to the remaining relevant sections of the Act. Section 27 lays down as under:- "No employer or union and no employees shall engage in any unfair labour practice." Thus there is total embargo on the unions of the employees as well as the employees and also on the employer on engaging in any unfair labour practice. Once it is found that Item 1 of Schedule IV covers general unfair labour practices on the part of the employer c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge or dismiss employee on the grounds mentioned in Item 1 of Schedule IV can be filed before the Labour Court. Such a complaint can cover both types of grievances against the employer; (1) that he has engaged in any unfair labour practice and (2) or he is engaging in any unfair labour practice. The learned counsel for the appellant submitted that though the Act is enacted with a view to prevent such unfair labour practices, there is no whisper about such prevention in any of the operative sections of the Act. This submission cannot be accepted in the light of the express language of section 28(1) and the types of complaints contemplated by it, as aforesaid. As per Section 28(1) of the Maharashtra Act an employee can file a complaint against the employer on the ground that the employer has engaged in unfair labour practice to discharge or dismiss employee by way of victimisation etc. For the purpose of illustration, we may take clause 1 of Item 1 of Schedule IV to highlight the scheme of this section. If an employee files a complaint before the Labour Court alleging that the employer has engaged in unfair labour practice to dismiss or discharge him by way of victimisation, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimately discharge or dismiss the employee on any of the alleged grounds and such enquiries are presently in progress or are presently in offing. Then the employer can be said to be presently engaging in any such unfair labour practice. It becomes obvious that the twin phrases `has engaged' and `is engaging in' indicate not only the finished, complete or continuous action but also an incomplete continuous action. In this connection, we may profitably look at what is said in Black's Law Dictionary, 6th Edition, at page 528, about the term "Engage", which reads as under:- "To employ or involve one's self; to take part in; to embark on." In Stroud's Judicial Dictionary, 5th Edition, at page 847, the term "engaged in discharging" has been dealt with as under:- "A lighter or craft is "engaged in discharging" ballast or goods, within an exemption from dock dues, if she goes to the place of discharge in the dock with the real intention of discharging there, although, from the place getting too full to take the ballast or goods, the vessel has to depart without making any discharge (London India Docks Co. v. Thames Steam Tug, etc., Co. (1909) A.C. 15)" It becomes, therefore, obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such complaint is indicated by clauses (a), (b) and (c) of Section 30(1), which read as under:- "30.(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 - (a) declare that an unfair practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice; (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 affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act; (c) where a recognised union has engaged in or is engaging in, any unfair labour practice, direct that its recognition shall be cancelled or that all or any of its rights under sub-section (1) of Section 20 or its right under section 23 shall be suspended." Even this provision when read with Item 1 of Schedule IV sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If such a complaint is ruled out the provisions of Section 30(2) would be rendered redundant and otios. When we keep in view the fact that as per Section 7 of the Maharashtra Act, all the complaints pertaining to Item 1 of Schedule IV can be filed only before the Labour Court and no other complaint regarding unfair labour practice can be filed before the Labour Court, and once the Labour Court is given the powers in appropriate cases of passing interim relief of restraining orders as per Section 30(2) it would clearly indicate the legislative intention that complaints regarding the proposed dismissal or discharge on any of the grounds mentioned in Item 1 of Schedule IV could be filed before the Labour Court. In such complaints the Labour Court in appropriate cases, in exercise of its powers under Section 30 (2) can issue interim orders with a view to preventing such alleged unfair practices from getting fructified. Thus Section 30(2) also highlights the legislative intent of providing an effective machinery to prevent the finalisation of the alleged unfair practices which are required to be nipped in the bud. If the orders of the Court whether final on interim are not complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 25-U provided for penalty for committing unfair labour practice and mandates that whoever is guilty of any unfair labour practice can be prosecuted before the competent court on a complaint made by or under the authority of an appropriate Government under Section 34(1) read with Section 25-U of the Industrial Disputes Act. So far as the Maharashtra Act is concerned, there is no direct prosecution against a party guilty of having engaged in any unfair labour practice. Such a prosecution has first to be preceded by an adjudication by a competent court regarding such engagement in unfair labour practice. Thereafter, it should culminate into a direction under Section 30(1)(b) or it may be a subject matter of interim relief order under Section 30(2). It is only thereafter that prosecution can be initiated against the concerned party disobeying such orders of the Court as per Section 48(1). Consequently, it cannot be said that the Division Bench of the Bombay High Court was not right when it took the view that the act of engaging in any unfair labour practice by itself is not an offence under the Maharashtra Act while such commission of unfair labour practice itself is an offence un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courage or instigate such forms of coercive actions as willful "go slow" squatting on the work premises after working hours or "gherao" of any of the members of the managerial or other staff. 6. To stage demonstrations at the residences of the employers or the managerial staff members." It becomes obvious that if an employer files a complaint before the Industrial Court under Item 5 or 6 of Schedule III that the Union is seeking to stage, encourage on instigate such forms of coercive actions as willful `go slow' or seeks to demonstrate at the residence of employers and if such an action is to be prevented a complaint has to be filed before the actual demonstration takes place or actual `go slow' policy is resorted to. Once such an action takes place there would remain no occasion to prevent such an action in good time. Consequently, on the same lines it cannot be said that unfair labour practice on the part of the employer also cannot be prevented till the actual unfair labour practice gets committed by him. We have also to keep in view that the Maharashtra Act is a social welfare legislation and in interpreting such a welfare legislation, such a construction should be placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." At page 661 of the same book, the author has considered the topic of Purposive Construction in contrast with literal construction. The learned author has observed as under:- "Contrast with literal construction Although the term `purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975:- If one looks back to the actual decisions of the [House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. The matter was summed up by Lord Diplock in this way- "... I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Maharashtra Act is in the field since more than two decades and even a Full Bench of the Industrial Court, Maharashtra by its unanimous decision dated September 28, 1984 had taken the same view and on that basis numerous complaints were entertained by the Labour Courts in Maharashtra over decades. It was only when a learned Single Judge of the High Court sitting at Nagpur, by his decision dated April 27, 1989 struck a discordant note that the present controversy cropped up. In our view, no fault can be found with the reasoning adopted by the Division Bench of the Bombay High Court for overruling the said contrary decision of the learned Single Judge of the Bombay High Court sitting at Nagpur in Writ Petition No. 2607 of 1988. Mr. Pai, learned senior counsel for the appellant, also argued that Item 1 of Schedule II refers to the threat given by the employer to discharge or dismiss the employees if they join the union. Thus, even a threat is considered to be an unfair labour practice as per this Item. While, the unfair labour practice mentioned in Item 1 of Schedule IV does not cover any threat but actual order of discharge or dismissal. It is not possible to agree. The rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by Shri Pai, learned senior counsel for the appellant. At this stage, we may also briefly note some of the additional contentions found in the written submissions filed on behalf of the appellant and the intervenors. In the written submissions filed on behalf of the intervenors it is contended that the infinitive "to", as mentioned in various clauses of Item 1 of Schedule IV and in other Items of the same Schedule and also in other Items of Schedules II and III, would indicate only completed action done by the concerned party. It is not possible to agree with this contention. As we have discussed earlier, the word "to" would include any action towards the final goal of the action. Schedule IV, as noted earlier, speaks about the general unfair labour practice on the part of employers. Therein barring Item no. 9, everywhere we find the user of the Infinitive. Same is the case with the wording of Schedule II barring Item No. 6 and the wording of Schedule III. While dealing with this aspect, a Full Bench of Industrial Court of Maharashtra, in its decision in Revision Application (ULP) No. 2 of 1983, speaking through its learned Member Gawande, has made the following observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under all the sub-items i.e. from (a) to (g) or either of them, the Labour Court has jurisdiction to entertain such a complaint under Section 28 of the Act. In adverting to the Literal Construction and in accepting the interpretation flowing therefrom, it becomes clear that the action contemplated on the part of the employer here is an action complete in itself. In other words, if the employer were to discharge or dismiss an employee under all the aforesaid sub-items or either of them, the Labour Court has jurisdiction to entertain a complaint. Implicit in this is the fact that the employer-employee relationship is severed by an order of discharge or dismissal, before the lodging of the complaint. That such a complaint will lie, that such a complaint is competent and that the Labour Court has jurisdiction to entertain such a complaint are points in respect of which the contenders before us do not join issue. 13. However, the question posed for the determination of the Full Bench is wide. After taking into consideration the interpretation-aspect as also the grammer-aspect, I am of the view that it will not be proper to put a mere Literal Construction on the wording of Item 1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tep or attempt made towards the ultimate goal of dismissing the concerned workman. Submission made on the scheme of Section 30(2) to the effect that interim order can be passed in connection with the practice complained of also cannot advance the case of the appellant for the simple reason that if the practice complained of is of any firm step taken by the employer towards the ultimate object of dismissing or discharging the employee on any of the grounds covered by clauses (a) to (g) of Item 1 of Schedule IV, interim relief can be granted in connection with such practice complained of and would not mean that till the practice gets fructified and translated into final act of dismissal or discharge, the Labour Court cannot pass appropriate interim relief orders under Section 30(2) as submitted in the written submissions. We may also briefly refer to the summary of arguments by Shri. G.B. Pai on behalf of the appellant as filed on 4.9.1995. Most of the submissions contained therein are already dealt with by us in the earlier part of this judgment. However, some additional aspects mentioned therein are required to be considered. In paragraph IV (i) it is submitted that the term "unf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be. The submission made in paragraph V(i) on the construction of the words "is engaging in" as found in Section 28 also cannot be countenanced for the simple reason that even in the said paragraph, it is mentioned that some of the unfair labour practices may be of continuing nature and for that purpose emphasis is placed on some of the items mentioned in Schedules II, III and IV. However, even from the scheme of the schedules it becomes clear that any present continuous act of engaging in the alleged unfair labour practice would be covered by the term "is engaging in". We have already discussed in detail the correct connotation of these words in the earlier part of this judgment. For the reasons recorded by us therein, this submission is found to be devoid of any substance. In sub- paragraph (iii) of paragraph V, it is submitted that the aim of prevention is achieved by : (a) directing the employer as an interim measure to withdraw the practice complained of and if the complaint is proved, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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