WP/6108/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6108 OF 1999 Maharashtra State Road Transport Kamgar Sanghatana & Anr. ... Petitioners V/s. The Maharashtra State Road Transport Corporation & Ors. ... Respondents Ms. Divya Chavan and Ms.Smita Deokar for the Petitioners Mr.G.A. Karmarkar i/b. G.S. Hegde & Associates for Respondent Nos.1 and 2. CORAM: SMT.NISHITA MHATRE, J. DATE: 11.01.2011 ORAL JUDGMENT: 1. The Petition has been preferred against the order of the Industrial Court by which the complaint filed by the petitioners under Items 9 and 10 of Schedule IV of the MRTU & PULP Act has been dismissed. 2. The facts giving rise to the present petition are as follows: Petitioner No.2 was employed with the respondent-Corporation for over 23 years. He was an activist of Petitioner No.1 Sanghatana and held the post of Divisional Secretary for the Regional Office Unit, Pune for several years. It appears that in September, 1989, the Corporation proposed to redistribute the work in the accounts section and assured the office bearers of the Sanghatna that they would be taken into confidence before actually proceeding to redistribute the work. According to the WP/6108/1999 : 2 : petitioners, no such consultation was held. Serious allegations were made by the petitioners against Respondent No.4 with respect to his conduct with female workers. Several complaints were made by the petitioners to the Corporation that Respondent No.4 had deliberately overburdened some of the female staff who were working under him with a heavy workload. A chargesheet was issued against Petitioner No.2 and a disciplinary enquiry was initiated against him on 31.3.1990. A show-cause notice was issued on 23.1.1991 directing petitioner No.2 to show cause as to why he should not be dismissed from service as the enquiry officer had found him guilty of acts of misconduct complained against him. This notice was received by petitioner No.2 on the next day i.e., 24.1.1991. It appears that on 25.1.1991, a letter was addressed by the Regional Manager i.e. Respondent No.2 herein to Petitioner No.1 informing it that the Corporation had decided to dismiss petitioner No.2 from service. It was mentioned that the letter was being sent by the management in accordance with the provisions of clause 30 of the settlement dated 19.12.1985. Petitioner No.2 submitted his explanation to the show-cause notice on 27.1.1991. As this explanation was not found satisfactory, Petitioner No.2 was dismissed from service on 1.2.1991. It appears that a letter dated 25.1.1991 was received by Petitioner No.1 on 14.1.1991. According to the petitioner, the letter was sent by the Secretary of the Headquarters to the Corporation that the general secretary of the Sanghatana was on tour and would return only on 7.2.1991 and that no further action should be taken in respect of Petitioner No.2 till he returned. 3. After his dismissal, Petitioner No.2 filed a complaint under the MRTU & PULP Act seeking the relief of reinstatement with continuity of service and back-wages, which I am informed is still pending before the Court. The Petitioners filed the WP/6108/1999 : 3 : present complaint on 31.7.1991 under Item 9 of Schedule IV of the MRTU & PULP Act contending that there was a violation of clause 30 of the settlement dated 19.12.1985 and that, therefore, the respondents have committed unfair labour practices under Items 9 and 10 of Schedule IV. It was pleaded that the Petitioner No. 1 had not been consulted by the Corporation before taking punitive action against the petitioner No.2. 4. Evidence was led by the parties before the Industrial Court. The general secretary was examined on behalf of the petitioners. Petitioner No.2 was also examined. The Corporation led evidence of the person who was working as the regional manager when the action was taken against petitioner No.2. 5. The Industrial Court after considering the evidence on record and the submissions on behalf of the parties held that the Corporation had not committed any unfair labour practice. It was of the view that the letter dated 25.1.1991 had not been replied by the Petitioner No.1 and, therefore, it could not contend that there was no consultation as required under the agreement of 19.12.1985. The Industrial Court also observed that the general secretary had admitted that he was well aware of the disciplinary action initiated against the petitioner No.2. According to the Industrial Court this would amount to consultation as required under clause 30 of the settlement. The Court therefore dismissed the complaint as the petitioner No.2 had already been dismissed. 6. The learned Counsel appearing for the Petitioners submits that the letter of 25.1.1991 does not indicate that there was any consultation as required under the settlement between petitioner No.1 on the one hand and the Corporation on the WP/6108/1999 : 4 : other, with respect to the dismissal order which it proposed to pass against Petitioner No.2. She further submits that the Corporation has issued circulars and memoranda time and again directing its officers to ensure that the settlement of 19.12.1985 was implemented in letter and spirit. According to the learned Counsel, the memoranda issued time and again by the Corporation indicate that the top officers of the Corporation were aware that clause 30 was not being implemented correctly and that office bearers of the union were being dismissed without affording a reasonable opportunity to the Petitioner No.1 to have meaningful consultations before final orders were passed. She submits that the word “consultation” must be given its true and proper meaning. According to her there must be a meeting between two or more persons before there is a consultation in respect of any issue. She points out that in the case of Union of India vs. Shankalchand Himatlal Sheth, (1977) 4 SCC 193, the Constitution Bench of the Supreme court has observed that the word “consult” means to confer and produce a mutual impact after being afforded a reasonable period for any decision. She also places reliance on the judgment of the Nagpur Bench of this Court in the case of Regional manager, Maharashtra State Road Transport Corporation, Nagpur & anr. v. Regional Secretary, Maharashtra State Transport Kamgar Sanghatana, Karanja, 1984, LAB. I.C. 1721 in support of her contention that when a settlement is arrived at between the Corporation and the Petitioner No.1, it must be implemented unconditionally; on the part of the employer to do so amounts to an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. The learned Counsel therefore submits that the Industrial Court ought to have declared that the respondents had committed an unfair labour practice under Items 9 and 10 of Schedule IV by not implementing clause 30 of the settlement. WP/6108/1999 : 5 : 7. Mr.Karmalkar, appearing for the respondents, submits that once a letter is issued to the Union informing it of the action proposed to be taken against one of its office bearers it would be sufficient compliance of clause 30 of the settlement. He submits that the Corporation in the present case has issued such a letter on 25.1.1991. The Sanghatana chose not to reply to that letter. According to the learned advocate the Corporation cannot be expected to wait endlessly till the Sanghatana decided to reply to its letter in order to have a meaningful consultation before terminating the services of Petitioner No.2. The learned advocate further submits that when petitioner No.2 has already challenged the disciplinary action taken against him the present complaint was not maintainable as it would be hit by the principles of res judicata. The learned advocate points out that the Industrial Court has committed no error by dismissing the complaint. 8. Before proceeding to consider the case on merits, it would be necessary to set out the provisions of clause 30 of the settlement dated 19.12.1985. This clause reads as under: “In addition to the existing provisions in case of disciplinary action amounting to dismissal/termination against the Divisional/Unit General Secretary or the Divisional/Unit President, the State level General Secretary will be taken into confidence before final orders are passed”. 9. Thus, when disciplinary action taken against certain office bearers of the union is to result in dismissal/termination from service, the State level general secretary is to be taken into confidence before the final orders of dismissal or termination from service are passed. Admittedly, petitioner No.2 was a divisional general secretary. Therefore, before dismissing him from service, the Corporation was expected to take into confidence the State level general secretary. By a memo WP/6108/1999 : 6 : issued on 20.8.1990, the Deputy General Manager (P&IR) addressed to the officers of the Corporation has brought to their notice that while awarding the punishment of dismissal or termination of service to the office bearers of the union, the general secretary of the union was not being taken into confidence and that the agreement was not being implemented in the proper spirit. The Deputy General Manager has therefore directed that before awarding the punishment of dismissal/termination from service to the office bearers of the union, reasonable time should be afforded to the State level general secretary to have a meaningful consultation before final orders are passed. Thus, it is not merely that the general secretary was to be taken into confidence in respect of final orders to be passed against the office bearers of the union but also a meaningful consultation was expected to be had before the orders were passed. 10. In the case of Union of India vs. Shankalchand Himatlal Sheth (supra), the Constitution bench of the Supreme Court considered the provisions of Article 22 (1) of the Constitution of India and the import of the word “consult” and “transfer” contained therein. Chandrachud, J. (as he then was) has observed in his opinion, thus: 38.In Words and Phrases (permanent Edition, 1960, Volume 9, page 3) to `consult' is defined as `to discuss something together, to deliberate'. Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word `consult' is frequently defined as meaning `to discuss something together, or to deliberate. Quoting Rollo v. Minister of Town and Country Planning and Fletcher v. Minister of Town and Country Planning Stroud's Judicial Dictionary (Volume 1, Third Edition, 1952, page 596) says in the context of the expression “consultation with any local authorities” that “consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice”. Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. WP/6108/1999 : 7 : Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. 39.It may not be a happy analogy, but it is commonsense that he who wants to `consult' a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for the diagnosis of his malady. Homely analogies apart, which can be multiplied, a decision of the Madras High Court in R. Pushpam v. State of Madras furnishes a good parallel. Section 43(b), Madras District Municipalities Act, 1920, provided that for the purpose of election of Councillors to a Municipal Council, the Local Government `after consulting the Municipal Council' may determine the wards in which reserved seats shall be set apart. While setting aside the reservation made in respect of one of the wards on the ground that the Local Government had failed to discharge its statutory obligation of consulting the Municipal Council, Justice K. Subba Rao, who then adorned the Bench of the Madras High Court, observed: “The word `consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution”. In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.” 11. Thus the expression “taking into confidence” which has been enlarged by the memo of 1990 directing the officers of the Corporation to have “meaningful consultation” indicates that two or more minds must consider a particular issue to resolve the same in a satisfactory manner. In the present case, the letter issued to the Petitioner No.1 indicates that it was merely an intimation to it about the action proposed to be taken against Petitioner No.2. There is no mention about any consultation or meeting to be held in respect of the proposed action. Therefore, in my opinion, the letter falls short of the provisions of clause 30 of the settlement dated 19.12.1985, as envisaged by the Respondent-Corporation in its memo of 1990. As a result of this there is an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. The Petitioner No.1 had informed the Corporation by this letter dated 30.1.1991 that its general secretary was not available for consultation. The WP/6108/1999 : 8 : consultation must be meaningful and, therefore, it was necessary for the respondent Corporation to hold discussions at a later date before passing the dismissal order. To suggest that a bare intimation to the Sangathana is sufficient compliance of clause 30 is in my view, not correct. 12. In these circumstances, the Petition is allowed. Rule made absolute. No costs.