1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2349 OF 2009 Municipal Corporation of Greater Mumbai, Through General Manager, BEST Undertaking. .. Petitioners V/s. General Secretary, BEST Worker’s Union .. Respondent .... Mr. S. K. Talsania, Senior Advocate a/w. Mr. Dipankar Das i/b. M.K. Kini & Co. for the Petitioners. Mr. M. D. Nagle for Respondent. .... CORAM : S. J. KATHAWALLA, J. DATE : JANUARY 13, 2010. P.C. Heard the learned Advocates appearing for the Parties. 2. Rule. Rule made returnable forthwith by consent Mr. Nagle waives notice for Respondent. 2 3. By this writ Petition, the Petitioners have sought quashing and setting aside of the order dated 21st July, 2009 passed by the Member, Industrial Court, Mumbai. Though the impugned order is of five pages and states that the application filed by the Respondent (Petitioners herein) stands disposed of, no decision is taken by the Industrial Court as regards the prayer sought in the application. 4. Prior to year 2008 the petitioners provided space to the Respondent for maintaining library at 26 depots and also at Dadar Workshop for benefit of the members of the Respondent Union. Since the Petitioners were of the view that Respondent is misusing the said space by not using the same for Library but for carrying out other activities of the Respondent, the Petitioners were compelled to discontinue the said facility by their letter dated 18th January, 2008. The Respondent questioned the said action on the part of the Petitioners before the Industrial Court. By an interim order dated 5th April, 2008 the Industrial Court directed the Petitioner not to discontinue the said library facility to various Depots and Centralized Workshop at Dadar. 3 6. The Petitioners challenged the said order by way of a writ petition before this Court being Writ Petition (L) No. 1341 of 2008 which was heard and disposed of by an order dated 7th July, 2008. Paragraph 3 of the said order is relevant and it reproduced hereunder : "2.....None of the rooms which were earlier earmarked for usage as library would be allotted to anybody including any Union until the complaint is heard and disposed of..... 3. Needless to state that if the Petitioner undertaking desires to use these spaces in the 26 depots for the Undertaking’s use, this order does not prevent the Undertaking from utilising the spaces for use of Undertaking itself. However, no allotment shall be made in favour of any third party or any Union till the complaint is heard and disposed of." 7. The Respondent preferred an Appeal from the order passed by the learned Single Judge being Appeal (L) No. 271 of 2009 which was dismissed by the Hon’ble Division Bench by its order dated 4th January, 2010. Clause 6 of the order is reproduced hereunder : “ No case is made out to cause any interference in the order passed by the learned single Judge and hence, this Appeal fails at the threshold and the same is hereby dismissed.” 4 8. In the meantime, the Petitioners by their letter dated 2nd March, 2009 requested the Respondent to issue necessary instructions to its office bearers of all depots to handover the lock and keys of the libraries to the Depot Manager of the respective Depots and also to handover the lock and keys of all the libraries at Dadar Workshop, within seven days from the date of receipt of the letter, as the Petitioners wanted the said space/premises to keep their files and records etc. for effective functioning of the department. Inspite of Petitioners repeated reminders, the Respondent/Union failed to handover the lock and keys of the libraries of various depots to the Petitioners. The Petitioners made an application dated 4th May, 2009 before the Industrial Court, Mumbai in the pending complaint (ULP) No. 63 of 2008 and prayed for directions against the Respondent company to hand over the lock and keys of the libraries situated at various depots and at Dadar Workshops. The said application was disposed of the by an order dated 21st July, 2009 which is impugned in this petition. As set out earlier, though the Industrial Court has disposed of said application, no decision is taken on the issue of handing over the locks and keys of the libraries to the Petitioners by the Respondent. The impugned order dated 21st July, 2007 5 therefore deserves to be set aside. 9. Admittedly, by an order passed by this Court dated 7th July, 2008, the Petitioners are allowed to use the said spaces in the 26 Depots and Dadar Workshop for the Petitioners use. The Appeal filed by the Respondent is also dismissed. The Petitioners can use the said spaces only if the Respondent opens the locks put on the said spaces and hands over the locks and keys. Not handing over the keys to the locks on he said spaces is nothing but preventing the Petitioners from using the said spaces allowed to be used by the Petitioners by this Court. Though this Court asked the learned Advocate for the Respondent, if the Respondent is willing to open the locks put on the said spaces and handover the same to the Petitioners, the learned Advocate for the Respondent after taking instructions stated that he would prefer if appropriate orders are passed by this Court in the matter. The argument sought to be advanced on behalf of the Respondent is that though the learned single Judge passed orders on 7th July 2008, the petitioners have asked for the locks and keys of the said spaces only on 2nd March, 2009. It is submitted that now the complaint itself can be heard. The argument is baseless and untenable. The fact remains that 6 the order passed by the learned Single Judge dated 7th July, 2008 is in force and the Petitioners are entitled to use the said spaces for their own use at any time. 11. In view thereof, I pass the following order : :: O R D E R :: i. The order passed by the Industrial Court dated 21st July, 2009 is quashed and set aside. ii. Respondent No. 1 shall within a period of two days i.e. on or before 16th January, 2010, open the locks put on the said spaces and handover the locks and keys to Mr. Kamble, Chief Security and Vigilance Officer of the Petitioner, at Colaba Office at Mumbai of the Petitioners. iii. If the locks put on the said spaces are not opened by the Respondent, and handed over to the Petitioners as directed in (ii) above, the Petitioners shall be at liberty to get the locks removed and use and occupy the said spaces as allowed by this Court in its order dated 7th July, 7 2008. iv. The observations made herein shall not be taken into consideration by the Industrial Court, whilst deciding the (ULP)Complaint No. 63 of 2008, and the same shall be disposed of on its own merits. v. Parties to act on a copy of this order duly authenticated by the Associate of this Court. 12. The writ petition is accordingly allowed with costs. 13. The learned counsel appearing for the Respondent seeks a stay of the order. Since this Court by the present order has only directed implementation of the order passed by this Court dated 7th July, 2008, and confirmed by the Appeal Court by its order dated 4th January, 2010, the question of granting any stay does not arise. [ S. J. KATHAWALLA, J. ]