1 WP-1028-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1028 OF 2010. Maker Chamber III Premises Co-operative Society Ltd. ..Petitioner. vs. Akhil Bhartiya General Kamgar Union & Anr. ..Respondents. .... Mr. K.P. Anilkumar, for Petitioner. Mr. M.M. Thorat, for Respondent No.1. .... CORAM : S.J. KATHAWALLA, J. DATE : 9TH JULY, 2010. P.C. Rule. 2. The Learned Advocate appearing for 1st Respondent waives service. By consent of the parties, Rule made returnable forthwith and the Writ Petition is taken up for final hearing. 3. By this Writ Petition, the Petitioner has inter-alia prayed for quashing and setting aside of the impugned order dated 2nd September 2009 passed by the Industrial Court, Mumbai, rejecting the Application filed by the Petitioner seeking that the preliminary 2 WP-1028-10 objection to the maintainability of Complaint (ULP) No. 595 of 2005 be decided first. Exhibit-H to the Writ Petition. 4. According to the Petitioner, following are the relevant facts for deciding the matter. 5. The Petitioner, Maker Chamber-III Premises Co- operative Society Limited, is a society registered under the Co- operative Societies Act, 1960 (hereinafter referred to as ‘Society’). The 1st Respondent is a trade union claiming to represent security guards, electrician, plumber and housekeeping staff working in the Society. 6. The Society is not carrying on commercial or industrial activities and it is not a commercial establishment or an Industry. The Society was formed with the money contributed by its members coming together without any idea or intention to make profit. The money collected from its members is used for the benefit of the members i.e. maintenance of the property. The members have office/commercial premises in the Society and the Society is maintaining the property and rendering service to its members. Also, there is complete identity in the character of those who contribute and those who participate in the surplus. 3 WP-1028-10 7. The Society has engaged the services of different categories of persons, namely, security guards, electrician, plumber and house-keeping staff for carrying out various obligations and activities, namely, maintenance of the premises, providing security to the property and also to attend the day-to-day problems of the members regarding supply of electricity, water, and facilities, like car parking, etc. 8. The 1st Respondent-Union claiming to represent the employees of the Society, filed a complaint of unfair labour practice under Item Nos. 9 and 10 of Schedule-IV of the M.R.T.U. and P.U.L.P. Act, 1971 in Complaint (ULP) No. 595 of 2005 before the Industrial Court, inter-alia, alleging that the Society is threatening the employees who are members of the Union with termination of service; that the Society is not complying with the labour statutes; etc. Alongwith the said complaint, an application seeking interim relief supported by an affidavit was also filed. The Petitioner filed its reply and opposed grant of any interim relief. In the said reply, the Petitioner pointed out the judgment in the case of Kiran Industrial Premises Co.op. Society Ltd. vs. Janta Kamgar Union & Ors., Reported in 2001(4) Bom.C.R. 550, wherein a Single Judge of this 4 WP-1028-10 Court has held that the Co-operative Society is not an “industry” and submitted that the Industrial Court constituted under the M.R.T.U. and P.U.L.P. Act, 1971, has no jurisdiction to try the complaint filed against the Society and the said Complaint (ULP) No. 595 of 2005 ought to be rejected as not maintainable, as the Petitioner-Society is not an “industry” as defined under the provisions of the Industrial Disputes Act, 1947, or is an “employer” as defined under the provisions of the M.R.T.U. and P.U.L.P. Act, 1971. 9. By an order dated 27th July 2006, the Industrial Court was pleased to reject the application of the Respondent-Union, seeking interim relief on the ground that the decision of this Court in Kiran Industrial Premises Co.op. Society Ltd (Supra) squarely applies to the facts of the present case. However, the Industrial Court was informed that the judgment of the Learned Single Judge in Kiran Industrial Premises Co.op. Society Ltd (Supra) was challenged in appeal before the Hon’ble Division Bench of this court and considering the pendency of the said appeal, the Industrial Court did not pass a final order in the matter. 10. In February 2009, an Appeal against the judgment and order passed in the case of Kiran Industrial Premises Co.op. 5 WP-1028-10 Society Ltd (supra) following the decision of the Hon’ble Apex Court in SOM Vihar Apartment Owners’ Housing Maintenance Society Ltd. vs. Workmen C/o. Indian Engineering and General Mazdoor, reported in (2002) 9 SCC 652, was disposed of as dismissed by a detailed judgment and order of the Hon’ble Division Bench of this court in the case of Shantaram Pandurang Jadhav & Ors. vs. Kiran Industrial Premises Co.op.Soc. Ltd., 2007 III CLR 418, wherein the Hon’ble Division Bench of this Court upheld the judgment of the Single Judge in the case of Kiran Industrial Premises Co.op. Society Ltd (Supra) and reiterated that a co-operative Society even if registered as a commercial premises society, cannot be termed as an “industry” and the Industrial Court has no jurisdiction to entertain any complaint against such societies. The Hon’ble Division Bench of this Court further held that such a society cannot be treated as an “employer” and hence there is no employer-employee relationship between the management of the society and the persons working in such society for the purposes of M.R.T.U. and P.U.L.P. Act, 1971. 11. In view of the above settled position of law, the Petitioner in February 2009 filed an application before the Industrial Court and prayed that the Complaint (ULP) No. 595 of 2005 be 6 WP-1028-10 rejected, as not maintainable, as the Petitioner-Society is not an industry and the 2nd Respondent has no jurisdiction to try the said complaint filed against the Petitioner-Society. 12. Despite the above binding judgments of this Court, the Industrial Court has passed an order dated 2nd September 2009, rejecting the application of the Petitioner and decided to proceed with the complaint on merits. 13. The Learned Advocate appearing for the Petitioner has submitted that the decisions of the Learned Single Judge as well as Hon’ble Division Bench of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra) were pointed out to the Learned Member of the Industrial Court and it was submitted on behalf of the Petitioner that the facts in the present case are squarely covered by the decision in Kiran Industrial Premises Co.op. Society Ltd. (supra) and that it would be a complete waste of time, if the Industrial Court decides to hear all the issues in the matter instead of deciding the issue regarding the maintainability of the complaint as a preliminary issue. However, the Industrial Court by its impugned order without even making a mention of the decisions of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra) and 7 WP-1028-10 further without considering that the Industrial Court itself had by its order dated 27th July 2006 dismissed the Application filed by the Respondent no.1 on the ground that the decision of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra) squarely applies to the facts of the present case and ordered that it would be better to decide all issues together as the same would be helpful in deciding the dispute between the parties without any delay. 14. The Learned Advocate appearing for 1st Respondent submitted that the facts in the decision of Kiran Industrial Premises Co.op. Society Ltd. (supra) are distinguishable from the facts in the present case. It is submitted that in the instant case, the Petitioner Society is making profits. 15. I have considered the submissions made by the Learned Advocate appearing for the Petitioner as well as 1st Respondent. I have also perused the impugned order passed by the Industrial Court. There can be no dispute that the general rule on the subject is that the Court should endeavour to dispose of all the issues whether preliminary or otherwise, at the same time. However, it cannot be said that there can be no exception to the said general rule. In the instant case, the Petitioner-Society is registered as a commercial 8 WP-1028-10 premises society. The members of the Petitioner-Society are occupying premises in the Petitioner-Society and are using the same for commercial purposes. The commercial activities are carried on by the members and not by the Society. The employees of the Society have been engaged by the Society for providing service to its members. As regards a similar Society, the Learned Single Judge as well as the Hon’ble Division Bench of this court relying on the decision of the Hon’ble Apex Court in SOM Vihar Apartment Owners’ Housing Maintenance Society Ltd. vs. Workmen C/o. Indian Engineering and General Mazdoor (supra) has held that the Respondent-society is not an “industry” and hence, ULP Complaint filed by the watchman of the society claiming that the society is committing unfair labour practice by terminating their services illegally, is not maintainable in law. 16. In view of the aforestated settled law on the subject, it would be an exercise in futility causing grave delay in the matter as well as inconvenience to the parties if the application on the issue as to whether the complaint filed by the Respondent against the Petitioner Society is maintainable is not decided as a preliminary issue but the parties are called upon to proceed with the trial on all 9 WP-1028-10 the issues arising in the matter. In the present case, the Industrial Court has certainly erred in not even making a mention of the decision of Hon’ble Division Bench of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra) and the order of the Industrial Court itself dated 27th July 2006 dismissing the Application filed by the Respondent no.1 seeking interim reliefs, on the ground that the decision of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra) squarely applies to the facts of the present case and rejecting the Application of the Petitioner-Society and directing the parties to proceed with the complaint on all the issues arising in the complaint. In view thereof, the impugned order dated 2nd September 2009 passed by the Industrial Court is erroneous and perverse and needs to be interfered with under Article 226 of the Constitution of India. 17. In view thereof, I pass the following order :- (i) The impugned order dated 2nd September 2009, passed by the Industrial Court, Mumbai, is quashed and set aside. (ii) The application filed by the Petitioner (Ex.C-15) be heard and disposed of by the Industrial Court, Mumbai, after hearing the 10 WP-1028-10 parties and considering the decision of the Division Bench of this Court in Kiran Industrial Premises Co.op. Society Ltd. (supra), without being influenced by any of the observations made in this order. (iii) The Industrial Court, Mumbai, shall endeavour to dispose of the Application within four weeks from today. (iv) Rule is accordingly, made absolute in terms of the above order. However, there will be no order as to costs. [ S.J. KATHAWALLA, J. ]