1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PEITION NO.3083 OF 2008 Pune Metropolitan Transport Corporation Ltd., Pune. ...Petitioner. Versus P.M.T. Kamgar Sangh (INTUC) & Ors. ...Respondents. ....... Mr. R.G. Ketkar for the Petitioner. Mr. Nitin A. Kulkarni for the Respondents. ...... CORAM : DR. D.Y. CHANDRACHUD, J. April 30, 2008. P.C.: The Pune Metropolitan Transport Corporation Limited has impugned in these proceedings, the correctness of an order passed on 31st March 2008 by the Member of the Industrial Court at Pune and his further order dated 17th April 2008. 2. The Petitioner had dismissed 51 employees from service after holding disciplinary proceedings on charges of serious misconduct. The chart at Exhibit A to the petition, which contains a 2 summary of the proceedings, would show that the orders of dismissal were passed in 2004, 2005 and 2006 in the generality of cases and in one case, the order was passed as far back as on 23rd April 1992. The employees had moved the Appeal Sub Committee of the Petitioner which in turn passed a resolution constituting a Committee of five members. The Committee submitted its report on 7th December 2006. On 8th May 2007, the Transport Committee passed a resolution and while accepting the report, set aside the order of dismissal passed by the General Manager and ordered reinstatement of the employees, treating the period between the date of dismissal and the date of reinstatement as leave without pay. The First Respondent instituted a complaint of unfair labour practices on 11th January 2008 and moved an application for interim relief. 3. The General Manager of the Petitioner moved the Urban Development Department of the State Government on 28th January 2008 for rescinding the resolution passed by the Transport Committee on 8th May 2007 in exercise of powers conferred by Section 451 of the Bombay Provincial Municipal Corporation Act, 1949. In a similar set 3 of cases, the Urban Development Department of the State Government, by a G.R. Dated 19th February 2008 suspended a resolution passed by the Transport Committee, by which 59 employees who were dismissed on the ground of misconduct, had been directed to be reinstated. In so far as the employees to whom the present proceedings relate are concerned, the General Manager followed up his letter dated 28th January 2008 to the State Government with a further letter dated 27th March 2008 of the Joint Managing Director requesting the Principal Secretary in the Urban Development Department of the State Government to take an urgent decision on the proposal moved under Section 451 of the Act. 4. On 29th March 2008, the First Respondent issued a notice threatening that its members would proceed on a hunger strike to seek the implementation of the resolution of the Transport Committee. A complaint of unfair labour practices was moved by the Petitioner herein (Complaint (ULP) 214 of 2007) in which by an order dated 11th April 2008, the Industrial Court directed the Union and its office bearers and members to restrain from proceeding on any type of 4 agitation in pursuance of the threat issued on 29th March 2008, until further Orders. In the meantime, by an order dated 31st March 2008, the Industrial Court allowed the application for interim relief moved by the Respondent in the complaint of unfair labour practices instituted by the Union. The Industrial Court categorically observed that it was not enquiring into the correctness of the allegations on merits, nor would it draw any conclusion or inference even prima facie for the disposal of the application for interim relief. Without any prima facie finding that there was an unfair labour practice, the Industrial Court directed that if within a period of two weeks thereafter, expiring on 14th April 2008, the State Government did not take any decision, the 51 workmen shall be reinstated in service subject to the condition that if the State Government rescinds the resolution passed by the Transport Committee, these directions shall stand revoked. 5. On 3rd April 2008, the Petitioner moved the Principal Secretary of the Urban Development Department in order to request an urgent decision under Section 451 of the Bombay Provincial Municipal Corporation Act, 1949. On 15th April 2008, an application 5 was moved before the Industrial Court seeking an extension of time of 15 days in order enable the Petitioner to move the State Government for expeditious decision. On 15th April 2008 an agitation was launched by the Respondent-Union seeking immediate compliance with the order of the Industrial Court directing reinstatement, despite the interim order dated 11th April 2008 which precluded the Union from resorting to any agitation. A report recording the events that transpired on 15th April 2008 was prepared under the signature of the Security Officer of the Petitioner and was placed on the record of the Industrial Court on 17th April 2008. In the meantime, on 15th April 2008, faced with the agitation launched by the Union, the Petitioner took a decision that without prejudice to its available legal remedies and specifically without prejudice to the contentions which were sought to be urged before the Industrial Court at the hearing which was to take place on 17th April 2008, the workmen were taken back in service. On 17th April 2008, when the Industrial Court was moved by the Petitioner for extension of time, the Court passed an order rejecting the application seeking an extension of time on the ground that the appointment orders had already been issued. 6 6. On behalf of the Petitioner, it has been submitted that the entire approach of the Industrial Court in granting interim relief of reinstatement at the interlocutory stage of a complaint unfair labour practices without even a prima facie determination as to the commission of unfair labour practices is vitiated. Learned Counsel submitted that ex-facie the order of 31st March 2008 would show that it was passed without evaluating the merits of the case and without any application of mind by the Learned Judge to the question as to whether relief in the nature of a final mandatory order should be passed at an interlocutory stage. Moreover, it was submitted that the State Government has been moved under Section 451 of the Bombay Provincial Municipal Corporation Act, 1949, for suspending the resolution of the Transport Committee to reinstate the workmen against whom orders of dismissal were passed after disciplinary enquiries were held and charges of misconduct were found to be established. The Petitioner was constrained to reinstate the employees upon an agitation launched by the Union – the Union, it was urged, did so in defiance of the ad-interim injunction issued on 7 11th April 2008. However, even while passing a resolution on 15th April 2008 of reinstating the employees, the Petitioner had clarified that this would be without prejudice to its legal remedies and more particularly to urge all appropriate contentions in the ensuing hearing on 17th April 2008. Despite this, the Industrial Court declined to extend time and dismissed the application filed by the Petitioner for extension. On the other hand, it has been urged on behalf of the Respondent that the order passed by the Industrial Court is appropriate having regard to the fact that the Transport Committee has taken a decision to reinstate the workmen in service without back wages. Learned Counsel submitted that interference of the Court with the order passed by the Industrial Court was in these circumstances, not warranted. 7. While granting interim relief under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, the Industrial Court, it is well settled, is required to make a prima facie evaluation of the merits of the case for determining whether an unfair labour practice has been committed. In 8 a matter relating to the exercise of disciplinary jurisdiction, the power to reinstate an employee at the interlocutory stage is not warranted particularly when a charge of serious misconduct is found to be established against an employee. In the present case, disciplinary enquiries were held against 51 employees separately and orders of termination were passed at distant dates of time in the past; as already noted, in one case in 1992, while in other cases between 2004 and 2006. Undoubtedly, the Appellate Committee has taken a decision to reinstate the employees without back wages. But the Industrial Court was equally apprised of the fact that the Petitioner has moved the State Government for the exercise of the jurisdiction under Section 451 of the Bombay Provincial Municipal Corporations Act, 1949, for rescinding the resolution passed by the Transport Committee. The State Government is empowered by Section 451 to suspend the execution of a resolution passed by the Corporation or by any other authority where it is in contravention of or in excess of the powers conferred by the Act or by any law for the time being in force or is likely to lead to a breach of the place or cause injury to the public or inter alia is likely to lead to an abuse, or misuse of or to 9 cause waste of municipal funds against the interests of the public. Whether the resolution passed by the Transport Committee is appropriate or otherwise, is a matter for the State Government to consider under Section 451 and no opinion need to be expressed by this Court on that aspect of the matter. Be that as it may, the Industrial Court was apprised of the fact that the State Government has been moved for action under Section 451. It is for the State Government to consider, after taking a view as to the public interest involved, whether such a resolution directing the reinstatement of employees who were found guilty of serious misconduct should be revoked. In so far as the Industrial Court was concerned, there was absolutely no warrant or justification for that Court to issue interim order directing that the employees shall stand reinstated if the resolution of the Transport Committee was not suspended by the State Government within two weeks. The Industrial Court has issued such a direction even without enquiring as to whether a prima facie case of unfair labour practice has been made out. In fact, the order of the Industrial Court expressly records that it has not enquired even prima facie into the merits of the application for interim relief. When 10 the Industrial Court was moved for extension of time on the ground that the State Government was moved for taking an early decision, that application was also inappropriately rejected on the ground that appointment orders have already been made in the meantime. This clearly overlooks the circumstance that the resolution dated 15th April 2008 of the Petitioner specifically refers to the fact that it has been issued without prejudice to the available remedies of the Petitioner and more particularly to the submissions which would be urged at the ensuing hearing before the Industrial Court on 17th April 2008. From the circumstances in which the resolution was passed, it is prima facie evident that in defiance of an order of injunction dated 11th April 2008, which held the field, the Respondent-Union launched an agitation on 15th April 2008 for immediate implementation of the resolution passed by the Transport Committee. The facts of the present case would show that prima facie, in breach of an injunction which held the field a coercive course of action was adopted. The order of the Industrial Court does not meet the required standard for the grant of interlocutory orders of a mandatory nature. It must be noted that against the employees serious charges of misconduct have 11 been found to be established in disciplinary enquiries. Yet they were directed to be reinstated by the Industrial Court at the interim stage. The Past record of the employees, as the chart at Exh.A would show, shows serious acts of misconduct, in some cases on 98 occasions and on 37 occasions to name only a few of those cases. The balance of convenience is clearly against the grant of such mandatory reliefs. If the employees succeed, they can well seek consequential reliefs at the final hearing of the complaint before the Industrial Court. 8. The order passed by the Industrial Court is wholly unsustainable. The exercise of the writ jurisdiction under Articles 226 and 227of the Constitution is warranted to ensure against a manifest failure of justice. The petition would have to be allowed and is accordingly allowed. The orders of the Industrial Court dated 17th April 2008 and 31st March 2008 shall stand quashed and set aside. The Industrial Court shall now proceed to dispose of the complaint in accordance with law, preferably within a period of four months from the date on which a certified copy of this order is placed on the file of 12 the Industrial Court. It would be necessary to clarify that the decision on the complaint of unfair labour practices shall be arrived at by the Industrial Court on the basis of the merits of the rival contentions and this order which is confined to the disposal of the application for interim relief will not be construed to be the expression of any final or conclusive opinion on the merits of the case. The petition shall stand allowed in these terms. No order as to costs. ......