1 W.P. 7475.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7475 OF 2011 Hotel Ambassador Ajanta Through its Manager, CIDCO, Jalna Road, Aurangabad. .... PETITIONER V E R S U S Bhartiya Kamgar Sena Shop No. 4, Samrat Apartment, Seven Hill, Gajanan Mandir Road, Aurangabad. .... RESPONDENT Mr. T.K.Prabhakaran, Advocate for the petitioner. Mr. Y.I.Thole, Advocate for the Respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 05/12/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present Respondent along with its members had filed Complaint ULP No. 99 of 2011 before the Industrial Court purportedly under Item No. 1 (a), 3 of Schedule II and Item Nos. 3,9 and 10 of 2 W.P. 7475.2011 - [ J ] Schedule IV of the M.R.T.U. and P.U.L.P. Act. Along with the Complaint, the Complainant also filed an application Exh. U-2 for interim order. The Industrial Court allowed the said application. Aggrieved thereby, the original opponent/employer has filed the present petition. 3. I have heard Mr. T.K.Prabhakaran, the learned counsel for the petitioner and Mr. Y.I.Thole, the learned counsel for the respondent. 4. According to the learned counsel for the petitioner, the Industrial Court could not have passed such a draconion order in as much as it puts a blanket bar on the right of the employer to take any action. The learned counsel submits that the observations made by the Industrial Court while passing the impugned order are perverse and against the record. The learned counsel contends that they have not engaged in any malafide action or unfair labour practice. The learned counsel submits that one Mr. Sawant had already joined at his transferred place at Chennai after the ad-interim order passed by this Court. Said Mr. Sawant prayed for revocation of action and thereafter joined at Chennai and is working there. 5. Mr. Thole, the learned counsel for the respondent submits that the Industrial Court has the jurisdiction and authority to pass interim 3 W.P. 7475.2011 - [ J ] orders. The circumstances of the case and the facts on record are such that the order of a nature passed by the Industrial Court was essential. The learned counsel submits that the original complainant nos. 1 to 60 were earlier members of another Union. The said Union was not engaging itself in the proper collective bargaining. As such, the complainants became the members of the present respondent/Union on 25/07/2011 and immediately on 26/07/2011, the petitioner started victimising and harassing the employees. All these facts were brought to the notice of the Industrial Court and the Industrial Court having been satisfied with the facts on record, has passed the order restraining the petitioner from discharging, dismissing or transferring any of the applicants therein. It had also considered the act of transferring Mr. Sawant, as malafide. Proper reasonings are given by the Industrial Court in this regard and even if it is assumed as contended by the petitioner that Mr. Sawant has joined at his transferred place, that would not affect the order. In fact, when the stay was granted by the Industrial Court and there was only ad- interim order passed by this Court, the petitioner could not have taken any action against said Mr. Sawant. 6. With the assistance of the learned counsel, I have gone through the impugned order. 4 W.P. 7475.2011 - [ J ] 7. The Industrial Court has passed the following order : “ ORDER Application is allowed. The respondent is hereby directed not to interfere in the legitimate right of its employees to form a trade union. The respondent is further directed not to terminate, discharge, dismiss or transfer any of the applicant nos. 1 to 60 or other members of applicant no. 61 Union during pendency of the Complaint. The transfer order of applicant no. 8 Mr. Sawant dated 26/7/2011 is hereby stayed till disposal of the Complaint. The respondent is directed to pay to the applicants Rs. 5,000/- towards costs of the application and to bear its own costs ”. 8. From the perusal of the order, it is manifest that the said order puts a complete embargo on the right of the employer to take any further action of discharging, dismissing or transferring any of the applicant even if the applicant would commit any act of gross mis- conduct. Such an order would not be in consonance and tune with any of the principles of justice, equity and good conscious. Even if the Industrial Court had come to the conclusion that the present respondent have got a prima facie case, then in such circumstances, the order of restrain on the 5 W.P. 7475.2011 - [ J ] petitioner could have been passed in a manner wherein the future rights of the employer are not transgressed. If the present order impugned is sustained, then it would lead to such an anamolous situation that even if a criminal activity is done by an employee, the employer would not be in a position to take any action. It is not a case wherein the particular order passed by the Court was challenged and interim order with regard to the said order was claimed. 9. It is submitted by the learned counsel for the petitioner that Mr. Sawant has already joined the transferred place, I would not go in to the details of the said transfer order at this stage as the Industrial Court would decide the same at the time of final adjudication. The transfer of said Mr. Sawant would always be subject to the final decision of the Complaint. 10. In the result, I quash and set aside the impugned order and modify the same as under : The present petitioner/original respondent/employer shall not terminate, discharge, dismiss or transfer any of the applicants without due process of law. 11. I have not observed anything on the merits of the matter. 6 W.P. 7475.2011 - [ J ] 12. The Tribunal shall decide the Complaint expeditiously. If in future some action is taken by the employer against any of the employees adhering to the legal process, then the original applicants/employees shall have liberty to challenge the same as is permissible in law. 13. Rule accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 7475.2011 - [ J ]