IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4133 OF 2009 Indo Count Industries Limited and Others ...Petitioners Vs. Shahu Soot Kapad Kamgar Sangh ... Respondent --- Shri M.S. Topkar for Petitioners Miss N.D. Buch i/b. S.K. More for Respondent Shri A.B. Desai for Respondent ---- CORAM: V.M. KANADE J. DATED 9TH JULY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioners and the learned Counsel for the Respondent. 2. The Petitioners, by this petition are challenging the judgment and order dated 23.3.2009 passed by the Industrial Court. By the said judgment and order, the Industrial Court was pleased to allow the application filed by the Respondent herein for interim relief and restrained the Petitioners from removing the machinery from the factory. 4. Brief facts are as under. The Petitioner No.1 is a limited company registered under the Companies Act and is engaged in manufacturing of yarn and is an export oriented unit. The said company is recognized as an undertaking under the BIR Act. The Respondent Company filed a complaint being Complaint (ULP) No. 5 of 2009 before the Industrial Court, Kolhapur alleging unfair labour practices on the part of the petitioners under Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971. In the complaint, it was alleged that the Petitioners were removing machines with an intention to render the employees jobless. It was contended that the petitioners could not remove the machines without giving notice of change under section 9A of the Industrial Disputes Act. It was therefore, prayed that the Petitioners be permanently restrained from removing the machinery from the undertaking without following due process of law and from refusing work to any employees in any manner. 5. The Petitioners filed their written statement and alleged that the allegations were baseless, false and untrue. It was further alleged that the said machines were obsolete and not likely to be used. It was further contended that the Petitioners had shifted the employees to places where there was work. It was further contended that the Petitioners did not intend to purchase any new machinery in place of the machinery which were to be sold. 6. The Industrial Court, however, allowed the interim application by passing the following order: “(i) The application for interim relief below Ex. U-2 is allowed. (ii) The Respondents are hereby directed to provide work to all the workmen alternatively, considering the grade and nature of work they are doing at present and not to remove, shift machinery from T.F.O. Department and knitting department during the pendency of the present complaint. (iii) The Respondents to act on the order within 15 days from today. (iv) The complaint to proceed further on merits. (v) No order as to costs. Sd/- Member, Industrial Court,Mah.,Kolhapur” 7. Shri Topkar, the learned Counsel for the Petitioners submitted that he has no objection so far as second part of the order is concerned and he submitted that the Petitioners were willing to give them alternate work considering the grade and nature of work which they are doing at present. He, however, submitted that the Industrial Court had committed an error of law which is apparent on the face of record in directing the Petitioners not to remove or shift the machinery. He submitted that the machines which were being removed from the department had become obsolete and not in use for the last two years. He submitted that there was no bar under the Act for the Petitioners to sell obsolete machines. He submitted that as long as alternate work was offered to the workers, no grievance could be made by the union over sale of obsolete machines. He submitted that in fact, settlement has been executed between the Petitioners and the Respondent-Union under section 58 r/w. 64 of the BIR Act and in the said settlement, the Petitioners were permitted to take various measures to tide over the recession which is prevalent in the textile industry. He submitted that the Union agreed to cooperate with the Petitioners. He submitted that under the said settlement, the union and workers had agreed with the Petitioners for the purpose of reducing expenses and reducing surplus operatives. 8. The learned Counsel appearing on behalf of the Respondent-Union, on the other hand, submitted that though it is claimed that alternate work is being provided to the workers, in fact, it was brought to the notice of the union that skilled workerswere offered the job of sweepers and other work which was not upto their grade and qualification. The learned Counsel submitted that it was not established that the said machines had become obsolete and this fact had to be proved by the Petitioners by leading evidence. It was further submitted that the said action of the Petitioners clearly amounted to rationalization and under the guise of selling obsolete machines, the Petitioners, in fact, were trying to change the nature of work and conditions of the service of the workmen. 9. Pursuant to the suggestion made by this Court to the parties to find out the solution to the problems, a meeting was held between the parties. However, in spite of the said meeting, there was no resolution of the dispute between the parties. 10. In the present case, the Industrial Court, in my view, erred in restraining the Petitioners from not selling the said obsolete machines. It is the case of the Petitioners that the said machines have become obsolete and machines are not in use for last more than two years. It is a matter of record that alternate work have been given to the workmen, though a grievance has been made that the alternate work which is given, is not in accordance with their grade and qualifications but the fact remains that there is no work which can be provided by the Petitioners to these workers and some alternate work has been given. It is an admitted position that the textile industry is facing recession and the company is also facing huge losses. Under these circumstances, therefore, in my view, merely because the Petitioners wanted to sell obsolete machines, the Industrial Court ought not to have restrained the Petitioners from selling the said machines. It is an admitted position that there is no provision under the law that the Petitioners are required to obtain any consent or permission of the Respondents to remove or to replace to machinery of the undertaking. Under these circumstances, therefore, in my view, it would be appropriate if the Petitioners are permitted to sell the said machines subject to certain conditions being imposed on them. 11. In the circumstances, the Petition is allowed. The interim order passed by the Industrial Court is modified. The restrictions imposed by the Industrial Court on the sale of machinery is withdrawn. The Petitioners, however, shall continue to give work to the Respondent employees and shall provide work to all the workmen alternatively considering the grade and nature of work which they are doing at present. The Petitioners, however, after the sale of the machinery, shall deposit an amount of Rs.3 lacs in the Industrial Court in the separate complaint which has been filed which is Complaint (ULP) No.35 of 2009. The workmen shall be permitted to make an application for withdrawal of the said amount which application shall be decided by the Industrial Court within two months in accordance with law. The Industrial Court shall also consider the grievance of the Respondent that the work which is being given is not in accordance with their grade and qualifications and suitable directions may be given to the Petitioners, if such an application is made by the workmen. V.M. KANADE J.