bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 8099 OF 2007 PETITION NO. 8099 OF 2007 PETITION NO. 8099 OF 2007 Wyeth Employees Union ... Petitioner v/s M/s.Arian Orgachem P. Ltd. & ors. ... Respondents Mr.Sanjay Singhavi with Bennet D’Costa for the petitioner. Mr.C.U.Singh i/by V.P.Sawant and Smt.N.R.Patankar for the respondents. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 P.C. P.C. P.C.: 1. By this petition the petitioner union has challenged the order dated 26.4.2005 in Complaint (ULP) No. 534 of 2004 and order dated 5.5.2007 in Misc. Application (ULP) No.1 of 2006. The application filed by one Joseph Monteiro, the then General Secretary of the petitioner, contending that the petitioner union did not wish to proceed with the complaint, was allowed and the complaint was disposed of for want of prosecution on 26.4.2005. By order dated 5.5.2007, the Industrial Court has refused to recall its order dated 26.4.2005 by concluding that it did not have the power to 2 recall/review its own order. 2. The petitioner union had filed Complaint (ULP) No.534 of 2004 contending that the respondents had committed unfair labour practices under Item 5 of Schedule II and Items 5, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The main prayer in the complaint is for quashing and setting aside the arrangement/agreement/contract/M.O.U. between the respondent Nos.1 and 3 transferring the production activities of respondent No.2 to respondent No.1 in the petition. A declaration was also sought that the employees of respondent No.2 should continue to be treated as its employees. Certain other interim reliefs were also prayed for by the union. This complaint was filed on 2.9.2004. 4. The petitioner now contends that, on 15.4.2005 respondent No.1 herein, had started forcing the workers to accept voluntary retirement and about 40 workers were paid large sums of money on this account. It is then contended that the respondent No.1 forced the remaining workers also to accept the Voluntary Retirement Scheme (in short V.R.S.) as the respondent No.1 herein wanted to start its construction activities on the land owned by the Company. All these events occurred while the 3 complaint was pending. It appears that, on 20.4.2005, a purshis was signed by Joseph Monteiro, the General Secretary of the Union placing on record that the workmen and the Union have finally settled all claims and disputes raised in the complaint against the respondents herein and, therefore, did not wish to pursue the complaint. This purshis was accepted by the Court on 26.4.2005 and the complaint was disposed of for want of prosecution. 5. The petitioner union now contends that the workers re-grouped and after all of them had dispersed on being paid amounts under the V.R.S. they found that Joseph Monteiro had filed a purshis without any authority and that he had without the consent of the General Body misrepresented to the Court, in collusion with the respondents, that he was authorised to sign the purshis as also to decide that the complaint should not be prosecuted. An application for recalling the order dated 26.4.2005 was filed in November, 2005. That application was heard and disposed of on 5.5.2007. The Industrial Court has dismissed the application since there was no specific provision under the M.R.T.U. & P.U.L.P. Act under which the application could be said to have been filed. The submission of the advocate for the petitioner that it was an application under Section 4 30(2) of the M.R.T.U. & P.U.L.P. Act was not accepted by the Industrial Court. It has observed that even if it is accepted that Joseph Monteiro had no authority to either withdraw the complaint or not to prosecute it, there was no power to recall the order passed in the complaint. 6. Mr.Singh for the respondents has submitted that any order passed by the Industrial Court, Industrial Tribunal or Labour Court which are creatures of the statute, cannot be recalled/reviewed unless there is a specific power to do so. However, he candidly submits that if a party establishes that an order was obtained from these authorities or any other quasi judicial authorities by fraud, then such a Tribunal/Court/Authority would have the jurisdiction to recall its earlier order. He very fairly invites my attention to the judgment of a learned Single Judge of this Court in the case of Kalavati Bharsingh Thapa v/s Kalavati Bharsingh Thapa v/s Kalavati Bharsingh Thapa v/s Maharashtra Maharashtra Maharashtra Plastic Industries, reported in 2004 (6) Plastic Industries, reported in 2004 (6) Plastic Industries, reported in 2004 (6) Bom.C.R. Bom.C.R. Bom.C.R. 600, 600, 600, wherein the learned Judge has observed that any order obtained by fraud or false representation would fall within the exception to the normal rule of the Industrial Court/Tribunal and not being able to review its own order. The learned counsel, however, submits that the contention of the petitioner that 5 Joseph Monteiro had misrepresented to the Court, in collusion with the respondents, the fact that the workers did not want to prosecute the complaint is not borne out by the voluminous evidence on record. He submits that all the workers have accepted the V.R.S. and, therefore, they had no claim against the respondents. According to the learned counsel, the fraud, if at all is perpetrated not by Joseph Monterio but by the so-called General Secretary of the petitioner union who has verified the present petition. 7. As already noticed, the main contention of the petitioner union is that, Joseph Monterio had misrepresented to the Court that the workers had decided not to prosecute the complaint. The contention has also been raised that Joseph Monteiro was not authorised to withdraw the complaint nor was he authorised not to prosecute it in view of the General Body meeting of 31.3.2004. The learned counsel for the petitioner has pointed out that one of the resolutions passed on that day was to the effect that no case would be withdrawn without the permission of the General Body. 8. In my opinion, it is not necessary for me to go into all these questions of fact as the Industrial Court has not applied its mind to the same. The only reason that 6 the Industrial Court has rejected the application is that it was under the impression that it cannot review or recall its own order. The Industrial Court has not applied its mind on the question as to whether the submissions contained in the application for recall are sufficient to establish that there is a fraud played by Joseph Monteiro on the workmen and consequently on the Court. It has not considered whether in fact there is a fraud played on the Court as claimed by the petitioner nor has it considered any of the material which has been placed before me by the respondents for concluding whether or not there is a misrepresentation or fraud on the part of Joseph Monteiro. 9. The counsel for both parties have relied on several judgments. It is not necessary for me to advert to those judgments in the light of the aforesaid discussion. 10. In my opinion, it would be appropriate to remand the matter to the Industrial Court to decide the application afresh. 11. The Industrial Court shall decide the application filed by the petitioner being Misc.Application (ULP) No.1 of 2006 in the light of the judgment of this Court 7 in the case of Kalavati B. Thapa v/s Maharashtra Kalavati B. Thapa v/s Maharashtra Kalavati B. Thapa v/s Maharashtra Plastic Plastic Plastic Industries Industries Industries (supra) and any other judgments which the parties may rely and the application shall be decided on its own merits. 12. Mr.Singhavi states that he will withdraw the application for condonation of delay being Application No.4 of 2008. If this application is withdrawn, automatically, the complaint in which the application is filed, does not survive. 13. Writ petition disposed of accordingly.