1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1295 OF 2009 The Manager Father James Shelke ...Petitioner Versus Smt. Shaila Ananda Fatangare ...Respondent ..... Mr. S.K. Shinde, advocate for the petitioner None for the respondent though served ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 22.09.2009 OF ORDER DATE OF PRONOUCNEMENT : 25.09.2009 OF ORDER PER COURT:- 1 This petition is directed against the judgment and order dated 10.10.2008 passed by the Member, Industrial Court, Aurangabad in Revision (ULP) No. 43 of 2006 and the judgment and order dated 27.9.2006 passed by the Judge, Labour Court, Aurangabad in complaint (ULP) No. 91 of 1995. 2 The background facts of the case, as disclosed in the petition, are as under:- 2 Respondent herein filed complaint before the Labour Court under Section 28 sub-section1 and 7 r.w. Item 1 (A), (B), (D), (E) and (G) of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971. It was stated in the said complaint that the respondent was in service of the petitioner as cook on monthly salary of Rs.1100/- from 6.1.1988 to 21.6.1995. It is further contended that the petitioner illegally terminated the services of the complainant. In response to the suit summons, the petitioner appeared in the matter on 31.5.2000 and filed their written statement denying the claim of the complainant and prayed for dismissal of the complaint. On 27.9.2006, the Labour Court allowed the complaint holding that the petitioner herein has engaged in unfair labour practice under Item 1 of Schedule IV of the MRTU and PULP Act by terminating the services of the complainant w.e.f. 21.6.1995. It was also directed to the petitioner to reinstate the complainant in service with continuity of service and back wages w.e.f. 21.6.1995. The petitioner herein being aggrieved by the judgment and order passed by the Labour Court, as stated above, has preferred revision (ULP) No. 43 of 2006 before the Industrial Court, Aurangabad. The Industrial court allowed the revision but remanded the matter back to the Labour Court. Hence, this writ petition. 3 3 Learned counsel appearing for the petitioner submitted that in stead of remanding the matter to the labour Court the Industrial Court should have dismissed the complaint filed by the respondent. It is further submitted that the proceeding i.e. the complaint is bad for non joinder of necessary parties. The Industrial Court should not have remanded the matter back to the Labour Court for removing the defects in the pleading. According to leaned counsel, the Industrial court has exceeded its jurisdiction and remanded the matter back with liberty to respondent/complainant to amend the pleadings in the complaint. It is further submitted that there is apparent error on the face of record committed by the Labour Court, the Industrial Court should have plainly allowed the revision filed by the petitioner and should not have remanded the matter. It is further submitted that the necessary parties are not joined to the complaint and therefore, the complaint filed by respondent was not maintainable before the Labour Court. It is further submitted that the provisions of C.P.C. are applicable to the present matter, therefore the Industrial Court should have plainly allowed the revision without remanding the matter to the Labour Court. Learned counsel invited my attention to the pleading and grounds in the petition and submitted that this writ petition deserves to be allowed. Though the respondent is served, none appears for her. 4 4 I have carefully perused the judgment and order passed by the Industrial Court in revision. It appears from the judgment of the Industrial Court that the Industrial Court framed as many as three issues for its consideration and determination and the issue No.1 i.e. whether the complainant proved that the respondent has been engaged in unfair labour practice, as alleged by the complainant and second issue whether the complainant is entitled for reinstatement with continuity of service and back wages, the court without adjudicating the matter on merits held that certain issues have not been framed by the Labour Court i.e. maintainability of the complaint against the Trust. The Industrial Court has observed that it is well settled principle of law and procedure that when the suit is filed against the public Trust and Trust is made party and all trustees are required to be joined to the proceeding. The Industrial Court in para 7 of the order has further observed thus:- “In this particular case the complaint is filed against the Manager Father James Shelke, not in the capacity as a Manager of the Trust nor Trustee is joined as a party nor trustees are made the parties therefore, the said defect in the case goes to the root of the matter. The learned Labour Judge ought to have framed the issues as the contentions are already taken in the written statement. Para 2 of the written statement 5 speaks about non joining the registered trust as a party. If the said defect remains on record the implementation of the order will be impossible therefore, without observing on merits anything I have to say that there is apparent error on the face of record committed by the Labour Judge and therefore, U/s. 44 of the MRTU and PULP Act, 1971, I have reason to interfere with the impugned judgment and order. " It is further observed by the Industrial Court that, on the ground of nonjoinder of the registered trust as a party, the entire complaint will come to an end i.e. the complaint is required to be dismissed. It is further observed that as the entire Code of Civil Procedure has no application to the proceeding under the Industrial Disputes Act and Labour Laws, I have to say that the opportunity is to be given to the parties to cure the said defect and for that purpose I am of the considered opinion that matter is to be remanded back to the Trial Court. 5 The Industrial Court has not decided the matter on merits and remanded the matter back to the Labour court. In my considered view, the Industrial Court has exceeded its jurisdiction and directed something, which was not permissible in the revisional jurisdiction. It was none of the business of the Industrial Court to remand the matter back to enable complainant to cure the defect in the complaint in absence of any prayer to that effect. That apart, the fate of the judgment and order passed by the Labour Court was under challenge 6 before the Industrial Court and the Industrial Court should have dealt with the matter on merits and should have disposed of the revision filed by the petitioners herein on its own merits. It was unwarranted exercise on the part of the Industrial Court to remand the matter back for curing the defect in the complaint. The Industrial Court has clearly exceeded its revisional jurisdiction and made observation that the complainant can cure the defect in the complaint and then Labour Court to proceed and decide the complaint. Therefore, in my considered view the impugned judgment and order is in excess of jurisdiction of the Industrial Court. Hence, the same is quashed and set aside. 6 The matter is remanded back to the Industrial Court for fresh consideration and hearing on merits. The Industrial Court shall proceed and decide the revision of the petitioner on its own merits. Till the revision is decided afresh finally, the judgment and order dated 27.9.2006 passed by the Judge, Labour Court, Aurangabad in complaint (ULP) No. 91 of 1995 shall remain stayed. Writ petition is partly allowed to the above extent and disposed of. 7 Civil application, if any, stands disposed of. ***** 7