ASSOCIATION OF ENGINEERING WORKERS Vs. ATV LIMITED

JUDGEMENT

(1.) THE petitioner has aimed this writ petition against the impugned order dated 19-6-1998 passed by the member, Industrial Court, Mumbai, dismissing the Complaint (ULP) No. 308 of 1985 of the petitioner.

(2.) I have heard the learned Counsel for both sides. Perused the record including the documents annexed to the petition. The facts giving rise to the dispute, in brief, are thus ---The petitioner Association of Engineering Workers filed the complaint alleging that the respondent No. 1 company had indulged in unfair labour practices. The management of the respondent No. 1 company called the union activists and tried to persuade them not to join the complainant union when the management had come to know that the employees were trying to join the complainant union. Management also allegedly threatened the employees with dismissal from service. It was also alleged that the management had threatened the employees with locking them out or closing down the undertaking if the said employees persisted to join the complainant union. It was alleged that, on the night of 11-4-1985, the management surreptitiously removed certain machinery and semi-finished goods from the factory premises. Again on 1-5-1985 some raw material and certain machinery were removed from the factory. The employees went to the factory on 2-5-1998 for work at 7. 00 a. m. in the morning at which time they were allegedly assaulted from some outsiders. The management also called the police to intervene at that time. The employees went to work at factory on 4-5-1985, however, they were prevented by the management from entering the factory premises and to do the work and refused to give any work to the employees. In short, according to the complainant union, the refusal by the management to give work to the employees was lock-out within the meaning of term under section 2 (1) of the Industrial Disputes Act. The said lock-out beside being unjustified was also illegal and deemed to be illegal under the provisions of the MRTU and PULP Act, inter alia for the reasons that the management of the respondent company had not given any notice as required under section 24 (2) (a) of the said Act. According to the complainant, the said lock-out was in furtherance of the managements threats to effect a lock-out if the employees persisted in joining or continuing to be the members of the complainant union. The complainant also alleged that they were entitled to the full wages for the total period of the said alleged lock-out in accordance with the agreement of the employment which the management of the respondent No. 1 had broken. In the course of the amendment in the said complaint, the dispute in respect of three workers was sought to be raised alleging that it amounted to unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act, 1971. It was also alleged that the respondent No. 1 company did not allow the rest 23 workers to resume duty on 4-5-1985 while in fact the said workmen were regularly reporting for duty and had offered for work every day. It may be noted at this juncture that the original complaint was adjudicated by the Industrial Court and after hearing both parties, by order dated 7-4-1995 the complaint was allowed by the Court by making a declaration of unfair labour practices on the part of the respondent No. 1 company and appropriate directions by way of affirmative action to allow 27 workmen to report on duty and to pay them all back wages and all benefits of continuity of service and also the unpaid wages for the said period. The time limit for implementation of the said order was to be made within two months. The said order was duly served on the respondent No. 1 company for implementation. Thereafter the respondent No. 1 made a review application purported to be under section 30 (2) of the MRTU and PULP Act for review of the said order dated 7-4-1995 requesting to re-open the hearing of the complaint. The petitioner objected to the said review application on the ground of maintainability of the same under the said provisions. The Industrial Court heard the said objections of the petitioner and by order dated 5-7-1995 held that the said review application was maintainable and directed expeditious hearing of the review application. After framing the issues, respondent No. 1 sought to make amendment to the review application. By order dated 14-12-1995, the Industrial Court allowed the said application for amendment on payment of cost at Rs. 1000/- to the petitioner and allowed the petitioner to file additional objections/reply to the review application. The Industrial Court also directed the respondent No. 1 company to furnish the bank guarantee to the tune of Rs. 3 lacs to secure all the workmen concerned in the dispute. The review application was thereafter heard. During the hearing of the same, the respondent No. 1 sought to introduce additional documents and inspite of petitioners objections for production of such documents at this stage, the Industrial Court, by its order dated 16-2-1996 allowed the production of the said documents. After hearing the parties in the said review petition, the Industrial Court by order dated 11-10-1996 allowed the review application and set aside the order dated 7-4-1995 in Complaint (ULP) No. 308 of 1985 for the purpose of reviewing the same, if necessary, on merits after hearing both sides. Thereafter the petitioner also sought to amend the complaint and after hearing the parties afresh the Industrial Court by order dated 19-6-1998 finally dismissed the Complaint (ULP) No. 308 of 1985. Hence this writ petition.

(3.) AT the outset, it may be noted that the learned Counsel for the petitioner made two submissions in this regard. Firstly, it was submitted that the act of the Industrial Court in reviewing the earlier order purported to be under the powers under section 30, sub-section (2) of the MRTU and PULP Act was patently illegal and, therefore, the entire subsequent proceeding and consequent dismissal of this complaint are rendered bad in law. The second objection raised on behalf of the petitioner is in respect of finding recorded by the Industrial Court in respect of jurisdiction of the said Court holding that the grievance made out by the complainant about their alleged illegal termination did not fall under Item 9 of Schedule IV but it fell under Item 1 of the said Schedule and, therefore, the Industrial Court had no jurisdiction to try the issue of illegal termination as it totally falls within the jurisdiction of the Labour Court. In view of this position, it would be just and proper on my part initially to deal with the dispute revolving around the order of review passed by the Industrial Court. No doubt that the provision of section 30, sub-section (2) of the MRTU and PULP Act makes it clear that the Industrial Court or Labour Court has power to review its interim orders. In other words, as submitted by the learned Counsel for the petitioner, there is no jurisdiction vested either in Industrial Court or in Labour Court under the said provision to review its final order and, therefore, such act committed by the Industrial Court in this case is totally illegal and without jurisdiction. Perusal of the review application Exh. "d" annexed to the petition and reply of the complainant union filed thereto vis-a-vis the order dated 5-7-1995 passed by the Industrial Court holding review application maintainable would show that the lower Court has assessed all pros and cons of the issue before holding that the review application was maintainable. In short, the issue of maintainability is decided on the criteria that, when the decision taken by that Court reflected glaring omissions and patent mistake or grave error, it was right for the Court to invoke the power to review the alleged erroneous order. In doing so, the Industrial Court has also relied upon several rulings of the Apex Court as well as this Court. In my considered view, taking the facts and circumstances into account involved in this case, the principles laid down by the Supreme Court in the Case of (S. Nagaraj and others v. State of Karnataka and another), reported in 1994 (1) L. L. J. 857, would be aptly applicable to the present case. In the said ruling it was observed thus ---