1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2305 OF 2007 Dagadu Tukaram Kamble ..Petitioner V/s. The Chief Executive Officer & anr. ..Respondents Ms.Seema Sarnaik, Advocate, for petitioner Mr.Nitin Jamdar, Advocate, for the respondent Nos.1 and 2 Mr.D.P.Adsule, A.P.P, for the State CORAM : A.S.OKA, J. DATE : 19TH SEPTEMBER, 2008 P.C. . Heard the learned counsel appearing for petitioner and the learned counsel appearing for the first and second respondents. The petitioner is the complainant who filed a complaint under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred 2 to as the said Act of 1971) alleging commission of unfair labour practice against the first and second respondents. The complaint was allowed by the Judgment and Order dated 23rd February, 1999, by declaring that the respondent Nos.1 and 2 are engaging in unfair labour practice. A direction was issued to re-instate the petitioner with continuity of service without back wages. As the said direction was not complied with, a complaint was filed by the petitioner under Section 48 of the said Act of 1971, in which the learned Judge issued a process. A Revision Application under Section 44 of the said Act, 1971 was filed by the first and second respondents for challenging the order of issue of process. By the Judgment and Order dated 24th August, 2004, the said Revision Application was allowed and the Order passed by the Labour Court, Solapur was quashed and set aside. 2. The submission of the learned counsel appearing for the petitioner is that the order of issue of process was set aside only on the ground that against the Order dated 23rd February, 1999 passed 3 by the Labour Court, Solapur, a Revision Application filed by the first and second respondents was pending. Her submission is that when there was no stay granted in the said Revision Application, only on the ground of pendency of the Revision Application, the learned Member of the Industrial Court ought not to have set aside the order of the Labour Court. She submitted that the learned Member has committed gross error by interferring with the order of issue of process in as much as even on the date on which the impugned order was passed, the order of re-instatement was not complied with. She pointed out that later on in the Revision Application filed by the respondent Nos.1 and the Order dated 23rd February, 1999 was quashed and set aside and a Writ Petition filed by the petitioner for challenging the order in the Revision Application has been admitted by this Court and is pending for final hearing. 3. The learned counsel appearing for the first and second respondents relied upon the decision of the learned Single Judge of this Court in the case of Sudhakar & Others Vs. Maharashtra State 4 Mining Corporation Limited. He submitted that the proceedings under Section 48 of the said Act, 1971 is a proceedings in the nature of contempt and therefore, the jurisdiction under Section 48 must be sparingly invoked. Reliance is also placed on another decision of the learned Single Judge of this Court in the case of Shri Rajendra Baburao Gholap Versus Shri Dattatraya Kashinath Jamdar, (1998 (1) Bom.C.R.600). He submitted that the process was issued without recording a statement of the petitioner on oath and therefore, even otherwise the said order was bad in law. He submitted that no case for interference is made out. 4. I have considered the submissions. I have perused the decision of this Corut in the case of Sudhakar & Others (Supra). Perusal of the said decision shows that considering the peculiar facts of the case before this Court, a view was taken that contempt jurisdiction could not have been invoked. This was a case where the order of which the breach was complained of was belatedly complied with by the employer. In the case of Shri Rajendra Baburao Gholap 5 (Supra), the order of process was quashed on the ground that compliance with Section 200 of the Code of Criminal Procedure, 1973 was not made before issuing process. 5. Now turning to the impuged order, the learned member of the Tribunal has referred to the aforesaid decision of this Court in the case of Sudhakar & Others and the only reason recorded is in paragraph six which reads thus :- “In view of these submissions, when the revision is pending, it is not proper to issue a process against the revision applicants and the reported case cited by the revision- applicant is just and proper and it is applicable and secondly, the jurisdiction of this Court is limited under Section 61 of the Act. This Court cannot re-appreciate the evidence on record, however, issuance of process is bad- in- law. Therefore, I answer point No.1 in the affirmative.” The only ground on which the order is set aside by the learned member is that when a Revision Application for challenging the order dated 23rd February, 1999 was pending, it was not proper to issue a process. While considering this case the learned Judge has relied upon the case of Sudhakar & Others (Supra). The decision in the 6 case of Sudhakar & Others (Supra) cannot be read as a precedent laying down that an action cannot be initiated under Section 48 when proceeding challenging an order of which breach was complained of is pending. Pendency of such proceeding can be at the most one of the considerations. It must be also noted that the learned member has not at all considered the facts of the case and has set aside the process only on the ground of the pendency of the Revision Application. Therefore, the learned counsel for the petitioner is right in objecting to the approach of the learned member of the Industrial Court. 6. Now, it is stated that the Order dated 23rd February, 1999 has been set aside by the Industrial Court in a Revision Application and a Writ petition is pending in this Court against the order of the Industrial Court. In view of this development, though, the view taken by the learned member is erroneous, Writ jurisdiction cannot be exercised to interfere with the impugned order. Therefore, it is not necessary to consider the submissions of the learned counsel 7 appearing for the respondent Nos.1 and 2 based on the decision of this Court in the case of Shri Rajendra Baburao Gholap Versus Shri Dattatraya Kashinath Jamdar (Supra). 7. Subject to what is stated above, Criminal Writ Petition is rejected. (A.S.OKA, J.)