WP/5727/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5727 OF 2010 Chairman/Executive Director Jyoti Paper Udyog Ltd. ... Petitioner V/s. Jyoti Paper Udyog Ltd., Internal Union, Nashik ... Respondent Mrs.Seema K. Chopda for Petitioner Mr.Bennet D'Costa for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 28, 2010 P.C.: 1. The petition challenges the order dated 30.6.2010 passed by the Industrial Court, Nashik. By this order, the Industrial Court has granted the interim application filed by the Respondent Union. The petitioner has been restrained from recruiting contract and/or casual workmen during the pendency of the strike. It has also been restrained from removing the machinery. 2. The learned advocate for the petitioner raised three issues: (i) that the strike has been called only because the President of the Respondent Union has been dismissed for service; (ii) that after declaration of the strike and obtaining an interim order the workers are now employed in other concerns and (iii) that all the workers are willing to settle their dispute but are restricted from doing so WP/5727/2010 : 2 : by the office bearers of the union. 3. On the other hand, the learned advocate for the Union points out that justifiability of the strike cannot be a matter for adjudication in a complaint filed under the MRTU & PULP Act complaining of unfair labour practices under Items 2 and 8 of Schedule IV of the MRTU & PULP Act. It is further contended that a strike can always be called when there is an industrial dispute. The very fact that the President of the Union has been dismissed from service has given rise to an industrial dispute for his reinstatement in service. It is also contended that by seeking the relief claimed in the petition of permitting the petitioner to engage workers on a contract basis during the pendency of the strike, the Petitioner is expecting this Court to assist it in engaging in an unfair labour practice. 4. In my opinion, the order of the Industrial Court cannot be faulted. The complaint has been filed complaining of unfair labour practices under Items 2 and 8. These are as follows: “2. To abolish the work of a regular nature being done by employees, and to give such work to contractors as a measure of breaking a strike. 8. To recruit employees during a strike which is not an illegal strike.” 1. The strike has commenced after 14 days of submitting a notice of strike. The Industrial Court has found on the basis of pleadings of pleadings and the material on record that prima facie the petitioner has engaged in an unfair labour practice and therefore it was necessary to direct it to cease and desist from indulging in an unfair labour practice. The Industrial Court has observed that the intention of the petitioner WP/5727/2010 : 3 : to engage contract workers during the period of strike is clear. The Court has held that if the interim relief was not granted the Petitioner would be free to employe other workers and thereby engage in unfair labour practices as reflected in Items 2 and 8 of Schedule IV. 2. The contention of the learned advocate for the petitioners that since the workers are employed elsewhere, the petitioners should be permitted to engage new hands either through a contractor or otherwise cannot be accepted. Items 2 and 8 very clearly indicate that such a practice of recruiting employees during a strike which is not an illegal strike is an unfair labour practice. Till today, there is no declaration that the strike is illegal although I am informed that proceedings are pending before the Labour Court, Nashik for declaring it an illegal strike. A strike is a mode used for collective bargaining. The union has a right to instruct its members to act in a particular legally permissible manner in order to ensure that the demands of the workmen are met. In my opinion, therefore, the Industrial Court has committed no error in granting interim relief to the respondent union. 3. Petition rejected.