AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO.583 OF 2008 IN WRIT PETITION NO.1841 OF 2008 The Hon. Secretary, Industrial Home for Blind Women. .... Appellant Vs. Smt. Shalini Dilip Gamare. .... Respondent Mr. R.S. Pai with Mr. T.R. Yadav for the appellant. Ms. Jane Cox for the respondent. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATE ON WHICH THE ORDER IS RESERVED : 25TH NOVEMBER, 2008. DATE ON WHICH THE ORDER IS PRONOUNCED : 4TH DECEMBER, 2008. P.C. :- 1. Admit. The respondent waives service. By consent of the parties, taken up for hearing forthwith. AJN 2 2. The appellant is the original respondent and the respondent is the original petitioner in Writ Petition No.1841 of 2008. In this appeal, the appellant has challenged order dated 1/9/2008 passed by learned Single Judge of this court in Writ Petition No.1841 of 2008. 3. It is necessary to begin with the facts of the case : The appellant is a Trust created by the Blind Relief Association for blind women. The object of the appellant is to impart vocational training to blind women in the age group of 19 years to 35 years. The respondent claims that she was employed by the appellant as “Molkarin” and was working as such from 1/5/1995 till her alleged unlawful termination with effect from 1/3/1996. According to the respondent, she was doing various types of miscellaneous works including work of cleaning, sweeping, serving tea, helping blind women, etc. It is her case that no appointment letter was issued to her but she was actually appointed on permanent basis. According to her, since she belongs to scheduled caste, she was ill-treated. She made representations to AJN 3 various authorities about the said ill-treatment which was not liked by the management. When she reported for work on 29/2/1996, she was not allowed to work. She was asked whether she is agreeable to work for 12 hours a day or stay in the hostel for 24 hours. She was asked not to report for duty with effect from 1/3/1996 if she is not agreeable to either of the above options. According to her, she was, thereafter, sent a letter dated 29/2/1996 wherein it was stated that she should either do 12 hours' duty or stay for 24 hours in the hostel. She was further informed that if she is not willing to opt for any of the options, she should not come for work from March, 1996 onwards. According to the respondent, she tried to report to duty on 1/3/1996 but she was not allowed to work because she was not prepared to do 12 hours duty. According to the respondent, she told the appellant that if required, occasionally, she should remain on duty upto 12 hours provided she is paid overtime wages as per law. The appellant declined to give her overtime wages. By letter dated 25/4/1996, the appellant informed the respondent that it had decided to dismiss her from service because it had not received any reply from her and because she was a temporary employee. The respondent replied to the said letter by her letter dated 16/5/1996 stating that for personal AJN 4 reasons, she was not able to work for 12 or 14 hours' a day. According to the respondent, she had made a grievance about the ill-treatment allegedly meted out to her by the appellant to the Social Welfare Department of Government of Maharashtra and that Department had instructed the appellant to take the respondent back in service by its letter dated 23/10/1996. The appellant addressed reply dated 19/11/1996 to the Social Welfare Department stating that the respondent's services were terminated during the probation period chiefly on account of her arrogant and ill-mannered behaviour with the superiors. It was recorded that as per the rules and regulations of the appellant, it is compulsory for all “ayahs” to remain on the premises for 24 hours for work because it is a residential-cum-training centre for the blind women. According to the respondent, in the circumstances, she had to raise a demand for reinstatement upon the appellant. Conciliation proceedings failed and the matter was referred for adjudication under section 10 of the Industrial Disputes Act, 1947 to the First Labour Court, Mumbai. The appellant filed its written statement to the statement of claim made by the respondent AJN 5 refuting the respondent's allegations. 4. The Labour Court, by its award delivered on 19/4/2007 (signed on 21/4/2007), partly allowed the reference. It held that the respondent is entitled to reinstatement without back-wages and in case of reinstatement, she is entitled to continuity of service with effect from 1/3/1996 without attendant benefits, but for pensionary benefits. The Labour Court further ordered that the appellant is at liberty to pay compensation of Rs.1,25,000/- to the respondent instead of reinstatement. We may quote the operative part of the award. “(i) Reference is partly allowed. (ii) The 2nd party is entitled to reinstatement without back wages and in case of reinstatement she is entitled to continuity of services w.e.f. 1.3.1996 without attendant benefits, but for pensionary benefits. (iii) The 1st party is at liberty to pay compensation of Rs.1,25,000/- (Rupees one lac twenty five thousand only) to the 2nd party instead of reinstatement and the 2nd party agrees to the same & if the 1st party does not desire to reinstate the 2nd party. (iv) The 2nd party is at liberty to receive AJN 6 compensation if she does not want to get reinstatement.” 5. The respondent filed a complaint in the Industrial Court at Bombay being Complaint (ULP) No.406 of 2007 contending that the appellant is guilty of unfair labour practices under Item No.9 of Schedule 4 of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 (for short, “MRTU & PULP Act”). In the complaint, the respondent's case, inter alia, was that after the Labour Court's order dated 19/4/2007 (signed on 21/4/2007), she approached the appellant, but the appellant refused to reinstate her. She, therefore, inter alia, prayed that the appellant be directed to reinstate her with continuity of service with effect from 1/3/1996. She further prayed that the appellant be directed to pay to her full back-wages. Upon perusal of the oral and documentary evidence, the Industrial Court by its order dated 8/1/2008 held that there was no failure on the part of the appellant to implement the award passed by the Labour Court. The Industrial Court observed that the award does not give an absolute right to reinstatement. The Industrial Court observed that the reliefs prayed for by the respondent cannot be granted, however, it was AJN 7 necessary to issue clear directions. The Industrial Court, therefore, clarified that the appellant shall either reinstate the respondent with continuity of service with effect from 1/3/1996 as said in clause (ii) of the award passed by the Labour Court or, in the alternative, pay her compensation of Rs.1,25,000/-. 6. It appears that on 10/3/2008, the appellant sent to the respondent a cheque in the sum of Rs.1,25,000/-. From the postal stamp, it appears that it was received by the respondent on 14/3/2008. The respondent encashed the cheque on 9/4/2008. She addressed a letter dated 29/5/2008 to the appellant stating that she was in receipt of letter dated 13/5/2008 sent by the appellant requesting her to confirm the receipt of cheque dated 10/3/2008 in the sum of Rs.1,25,000/-. She confirmed that she was in receipt of the said cheque. She noted that she had accepted the said cheque without prejudice to her right to challenge the orders of the Labour Court and the Industrial Court so as to claim reinstatement and full back-wages. Thereafter, in July, 2008, she filed the instant writ petition praying that the award dated 9/4/2007 passed by the Labour Court be quashed and set aside and a direction be issued to the appellant to reinstate her AJN 8 with effect from 1/3/1996 with continuity of service and full back- wages after adjusting the amount of Rs.1,25,000/-. 7. On 1/9/2008, learned Single Judge issued Rule on the said writ petition. He observed that having regard to the extra ordinary orders passed by the Labour Court and the Industrial Court granting the appellant option to reinstate or to pay compensation, it is necessary to stay the orders. By way of interim relief, learned Single Judge ordered that the respondent is entitled to reinstatement without back-wages, however, pending adjudication of the writ petition, she may retain Rs.1,25,000/- received by her as compensation. Learned Single Judge further ordered that the said amount shall be subject to adjustment in the event this court grants back-wages. Learned Single Judge made it clear that the respondent shall be liable to return the amount of compensation in case this court holds that she is not entitled to the said compensation. The said order is challenged in this appeal. 8. We have heard, at some length, Mr. Pai, learned counsel appearing for the appellant. Mr. Pai submitted that learned Single Judge erred in granting the final relief at interim stage. In this AJN 9 connection, he relied on the judgment of this court in Maharashtra State Road Transport Corporation, Nagpur v. Raju Mahadeorao Bhagwatkar, 2003 (98) FLR 416. He submitted that the Labour Court's order dated 21/4/2007 is perfectly legal and justified. In this connection, he relied on the judgment of the Supreme Court in U.P. State Electricity Board v. Laxmi Kant Gupta, 2008 III CLR 585. Learned counsel submitted that the appellant is a Trust which conducts vocational training centre for blind women. It is not covered by the Shops and Establishments Act and, therefore, the respondent cannot insist that she must be given only 8 hours' duty. Learned counsel submitted that learned Single Judge failed to notice that the Labour Court had directed the appellant to make payment of Rs.1,25,000/- in lieu of reinstatement. Option was given to the appellant to either reinstate the respondent or give her Rs.1,25,000/- as compensation in lieu of reinstatement. Such course being perfectly legal, learned Single Judge was wrong in observing that the order passed by the Labour Court granting the appellant option to reinstate or to pay compensation was extra ordinary. Learned Single Judge erred in directing that the respondent should be reinstated without back- AJN 10 wages and, at the same time, permitting the respondent to retain Rs.1,25,000/- received by her as compensation. He submitted that it was wrong to observe that that amount will be subject to adjustment in the event this court grants back-wages. He submitted that in case back-wages are not granted, it would be difficult to recover the said amount from the respondent. Learned counsel submitted that, therefore, the said order deserves to be set aside. 9. Ms. Jane Cox, learned counsel for the respondent, on the other hand, submitted that the appellant is guilty of unfair labour practices. Learned counsel pointed out that in its letter dated 29/2/1996, the appellant only stated that the respondent was not willing to work for 12 hours a day. The respondent's services were terminated by the appellant by its letter dated 19/11/1996 wherein it was stated that the appellant had not received any reply to their letter dated 29/2/2006 and since the respondent was on probation a decision was taken to remove her from service. However, in the letter dated 19/11/1996 addressed to the Under Secretary, Social Welfare Department, Government of Maharashtra, the appellant came out with a different story that the respondent's services were AJN 11 terminated because of her arrogant and ill-mannered behaviour with the seniors. Learned counsel submitted that this contradictory stand makes the falsity of the appellant's case evident. She drew our attention to certain portions of the Labour Court's order where the Labour Court has recorded that the appellant has failed to prove that the respondent was appointed on probation. She pointed out that the Labour Court has further observed that in the letter dated 29/2/1996 written by the appellant, it is stated that the respondent had worked in the workshop from 1/5/1995 to 29/6/1996. Along with this letter, the appellant had submitted a complaint dated 12/12/1995. The Labour Court has said that it appears from the complaint that it is obtained after termination of service of the respondent to justify the appellant's action to the Social Welfare Department. Learned counsel submitted that this clearly indicates that the appellant has fabricated the complaint. Learned counsel submitted that there is a clear finding recorded by the Labour Court that the appellant had terminated the services of the respondent without following the due process of law and with malafide intention. On instructions from the respondent, who is present in the court, learned counsel submitted that the respondent is willing to deposit in the court the said sum of Rs.1,25,000/- which AJN 12 she has received from the appellant. She submitted that in any case, letter dated 29/5/2008 sent by the respondent clearly indicates that the said amount was received by her without prejudice to her rights to challenge the orders passed by the Labour Court and the Industrial Court. She submitted that taking into consideration this fact the appeal be dismissed, the respondent be directed to be reinstated, and, if found necessary, a direction be given to the respondent to deposit Rs.1,25,000/- in the court. 10. Challenge to the impugned order so far it grants Rule, cannot be sustained. Since, the writ petition is admitted, rival legal and factual submissions on the merits of the case can be heard only at the final hearing of the writ petition. We cannot and we need not go into those submissions at this stage. Learned counsel for the appellant has basically assailed the impugned order so far as it grants interim reliefs. It is, therefore, necessary to see how far that challenge is valid. 11. In the writ petition, the respondent has prayed that the appellant be directed to reinstate her with continuity of service and AJN 13 full back-wages after adjusting the amount of Rs.1,25,000/- paid to her. Thus, the respondent was aggrieved by the option given by the courts below to the appellant to either reinstate her without back-wages or pay her compensation of Rs.1,25,000/- in lieu of reinstatement. By the impugned order, learned Single Judge has granted her prayer for reinstatement. He did not grant her full back-wages but he went on to observe that Rs.1,25,000/- which she has received as compensation may be permitted to be retained by her and that amount will be subject to adjustment in the event this court grants back-wages. So, in effect, her entire prayer is granted. Learned counsel for the appellant submitted that this amounts to granting final relief at interim stage which the court should not have granted. We find substance in this submission. 12. In Bank of Maharashtra v. Race Shipping & Transport Co. Pvt. Ltd. & Another, (1995) 3 SCC 257, the High Court had directed the appellant-bank to credit a sum of Rs.95,000/- in the current account of respondent 1 by recording statement made by respondent 1's counsel that the amount will be brought back if the court so desires. The Supreme Court observed that the said AJN 14 interim order in substance grants the relief which respondent 1 would have been given at the final stage in the event of its writ petition being allowed by the High Court. The Supreme Court noted that the appellant-bank had raised objection regarding maintainability of the writ petition and that objection cannot be disregarded as lacking in substance. Referring to its earlier judgment in Assistant. CCE v. Dunlop India Ltd., (1985) 1 SCC 260, the Supreme Court observed as under : “Time and again this court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. 13. Similar view has been taken by a Division Bench of this court in Maharashtra State Road Transport Corporation' s case (supra). In our opinion, the ratio of the above judgments is clearly attracted to the facts of this case. No exceptional circumstances were made out for grant of such relief. We feel that learned Single Judge erred in giving final relief at interim stage. AJN 15 14. While granting interim relief, learned Single Judge has said that having regard to the extra ordinary order passed by the Labour Court and the Industrial Court granting option to the appellant to reinstate the respondent or to pay her compensation, it is necessary to stay the order. Therefore, the option given to the appellant to reinstate or to pay compensation to the respondent weighed with learned Single Judge. In U.P. State Electricity Board' s case (supra), the respondent therein had claimed that his termination was bad. Reference was made to the State Government under section 4(k) of the U.P. Industrial Disputes Act, 1947 regarding termination of service of the respondent. The Labour Court reinstated the respondent without back-wages. Back-wages were denied to the respondent on the ground that the respondent had claimed back-wages after a delay of about 10 years. When this order was challenged in the High Court in writ petition, as an interim measure, the High Court granted to the respondent salary instead of reinstatement. As a result of the interim order, the respondent received Rs.7 lakhs. Thereafter, the High Court upheld the award of the Labour Court. After AJN 16 considering several judgments of the Supreme Court, the Supreme Court observed as under : “11. Thus, it is evident that there has been a shift in the legal position which has been modified by this Court and now there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is reinstatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case.” 15. On merits, the Supreme Court observed that as a result of the interim order, the respondent had received more than Rs.7 lakhs. The Supreme Court further observed that coupled with the fact that the respondent worked for only two years as a purely temporary employee and the fact that he raised the industrial dispute before the Conciliation Officer only after ten years of termination of his service, it was of the opinion that the respondent had already got more than sufficient compensation. The Supreme Court set aside the High Court's order to the extent it granted reinstatement and observed that in that case, the compensation should have been granted instead of reinstatement and the amount paid to the respondent was more than sufficient. Prima facie it, AJN 17 therefore, appears to us that if compensation is granted in lieu of reinstatement, the court cannot be faulted for it if circumstances justify such order. How far the Labour Court is right in granting option to the appellant to reinstate the respondent or to pay her compensation in lieu of reinstatement can be examined at the final hearing of the writ petition. 16. The objection of the appellant is to the order of learned Single Judge directing the respondent's reinstatement and allowing her to retain Rs.1,25,000/- received by her as compensation in lieu of reinstatement. We find substance in this grievance. The respondent cannot have both. The respondent has worked with the appellant only from 1/5/1995 to 1/3/1996. Option was given to the appellant by the Labour Court on 19/4/2007. The respondent filed complaint in the Industrial Court contending that the appellant refused to grant reinstatement but offered compensation and, hence, it was guilty of unfair labour practice. The Industrial Court vide its order dated 8/1/2008 noted that the respondent had claimed reinstatement on 27/8/2007 and, on the same day, the appellant wrote back to her asking her to collect a cheque of Rs.1,25,000/- and, therefore, there was no failure on the part of the AJN 18 appellant to implement the award passed by the Labour Court. On the factual position about the exchange of abovementioned letters, there can be no dispute. It appears that the appellant sent a cheque of Rs.1,25,000/- along with letter dated 10/3/2008 which was received by the respondent on 14/3/2008. Admittedly, on 9/4/2008, the respondent encashed the said cheque and only on 29/5/2008, she sent letter to the appellant stating that she had accepted the cheque without prejudice to her rights to challenge the orders passed by the Labour Court and the Industrial Court. In our opinion, if the respondent wanted reinstatement, she should not have accepted Rs.1,25,000/-. Her belated letter stating that she accepted the cheque without prejudice to her rights, does not help her. In our opinion, therefore, learned Single Judge erred in directing her reinstatement and allowing her to retain Rs.1,25,000/-. Learned Single Judge has directed reinstatement without back-wages and has observed that the said amount will be subject to adjustment in the event this court grants back-wages. Similarly, learned Single Judge has directed that the respondent shall return the amount of Rs.1,25,000/- in the event this court feels that the respondent is not entitled to this compensation. It cannot be said with certainty at this stage that this court will grant back- AJN 19 wages to the respondent. If back-wages are not granted, there is no question of adjustment. Similarly, it is difficult to say whether this court would hold that the respondent is entitled to Rs.1,25,000/-, which she has already received as compensation. If this court holds that she is not entitled to compensation, it will not be possible for the respondent to bring back the said amount. It cannot be forgotten that the appellant is a Trust, whose object is to impart vocational training to blind women. It is true that it is a Government aided institution but looking to the object of the Trust, it's funds need to be protected. An interim order which may ultimately result in the Trust loosing such a large amount cannot be passed. 17. The question whether the appellant could have asked the respondent to work for 12 hours a day is not for us to decide at this stage. Reliance is placed by learned counsel for the appellant on the judgment of the Supreme Court in Ruth Soren v. Managing Committee, East I.S.S.D.A. & Ors., 2001 I CLR 462 where the Supreme Court has held that “establishment” as defined under the Bihar Shops and Establishments Act, 1953 is not as wide as AJN 20 “industry” defined under the Industrial Disputes Act. It is held that if there is an organized activity between the employers and employees to impart education, it may be industry but would not be a profession, trade or business for the purposes of Article 19(1)(g) of the Constitution and would not fall within the scope of establishment under the Bihar Shops and Establishments Act, 1953. It is contended that Bihar Shops and Establishments Act, 1953 is in pari materia with the Bombay Shops and Establishments Act and since the appellant is not an establishment, the restriction on working hours, which are applicable to the establishments covered by the Bombay Shops and Establishments Act would not be applicable to the appellant. We have already stated that these legal submissions would be gone into at the final hearing of the writ petition. At this stage, the material point to note is that the appellant is a Trust which is looking after the needs of blind women. The nature of activities of the appellant-Trust is such that round the clock presence of women workers appears to be necessary. Letter dated 29/2/1996 addressed to the respondent by the appellant is of some significance. It states that the appellant is the home for the blind women and, hence, requires women workers