1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2335 OF 2008 Electropneumatics and Hydraulics (India) Pvt. Ltd. ..Petitioner. Vs. Bharatiya Kamgar Karmachari Mahasangh and another ..Respondents. .... Mr. K.M. Naik i/b Mr. S.P. Salkar for the Petitioner. Mr. R.S. Pai with Mr. T.R. Yadav for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 15th April, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. With the consent of the learned counsel, taken up for hearing and final disposal. 2. These proceedings arise out of an interlocutory order passed by the Industrial Court on 14th January, 2008 by which the Petitioner has been directed to provide the same work to five workmen, which they were discharging prior to 22nd December, 2006. 3. The five workmen in question to whom the complaint relates are (i) Sanjay Mungse, (ii) Saif Hayder, (iii) Sunil Kadam, (iv) Ramchandra Buchade and (v) Poolchand Ram. 2 4. Mr. Sanjay Mungse, the first workman was according to the management employed as a helper / sweeper since he joined service. From the record before the Court prima facie it appears that on 22nd December, 2006 the workman was in fact issued a show cause notice for refusing to carry out housekeeping work in the toilet / bathroom / shop floor. The management imposed a penalty of two days' suspension. A complaint of unfair labour practices was filed and on 14th January, 2008 the Industrial Court declined to grant interim relief and rejected the application. On the same day, however, by the judgment which is impugned in these proceedings. the learned Member of the Industrial Court came to the conclusion that there was nothing on the record to show that the appointment of the aforesaid workman was as a sweeper and that since his employment, he was performing the job of cleaning toilets and bathrooms and the shop floor. 5. Prima facie, there is merit in the submission that the finding contained in the impugned order would be directly at variance with the foundation of the companion order passed by the learned Member of the Industrial Court, declining to grant interim 3 relief to the workman in a complaint instituted out of a disciplinary penalty imposed upon the workman for refusing to do the work of cleaning toilets / bathrooms / shop floor. 6. That apart, there is merit in the submission which was urged on behalf of the Petitioner that in granting an interlocutory injunction in the nature of a mandatory order that is impugned in these proceedings, the Industrial Court ignored material clauses of a subsisting Memorandum of Settlement dated 3rd May, 2005. The Settlement inter alia provides that deployment / redeployment of manpower in accordance with work requirements, within the plant and in the field and /or from one department / section to another, or from one job to another or one skill to another to meet work exigencies arising out of production activities or field complaints would be the sole discretion of the management. This provision is contained in Part IV B (5) of the settlement. The settlement provides that workmen would be liable to be deployed / transferred anywhere in the factory or, at any unit, branch office etc. and that the union would not stand in the way of productive utilization of surplus manpower. The settlement also provides that the workmen shall acquire multi-skilling techniques. These provisions of the 4 industrial settlement, which continues to subsist and to be binding, were drawn to the attention of the Industrial Court. But, the Learned Judge held that since the workman was for the first time asked to do this work, a direction to perform such work was a change in service conditions and prima facie amounted to an unfair labour practice. This approach of the Industrial Court, with respect, particularly at the interlocutory stage is erroneous. The Industrial Court ignored the applicable clauses of a binding industrial settlement. In doing so the Industrial Court has made a clear and patent error which would warrant interference at this stage in the exercise of the writ jurisdiction of the Court. In construing as to whether there is an unfair labour practice the Industrial Court cannot be unmindful of the effect of an industrial settlement which holds the field. Where the action of the employer is taken lawfully in pursuance of an empowering provision contained in an industrial settlement, it would prima facie be far fetched to hold that an unfair labour practice has been committed. 7. The other four workmen were working as helpers in the garden and were assigned to carry out work in the fabrication department. In the written statement which has been filed on behalf of the Petitioner it is stated that these four workmen are 5 helpers who can be asked to work in any department and since there was a need for grinders they were asked to work in the fabrication department. Counsel appearing for the management has stated during the course of the hearing that the management assumed the full responsibility to ensure that these four workmen are duly equipped to handle the task which they are assigned and for maintaining all requisite standards of safety that are required under the law. The submission of the union was that one of the workmen was assigned to work on a machine which was under the control of a labour contractor, but this was denied in paragraph 16 of the written statement. 8. The assignment of work, in the circumstances of a case such as the present, is in the discretion of and the prerogative of the management particularly when there is a clause in an industrial settlement entered into with a union which permits deployment of workmen between jobs and departments. The settlement as noted above speaks of the necessity of multi-skilling. In these circumstances, the Industrial Court transgressed the limitations on its jurisdiction particularly while disposing of an application for interim relief, to injunct the employer from allocating work in 6 accordance with the needs and requirements of the business. 9. In the circumstances, the order of the Industrial Court is unsustainable and will have to be quashed and set aside. However, while disposing of this Petition it is clarified that the observations which are contained in the present order are only confined to the disposal of the application for interim relief and the complaint of unfair labour practices shall be disposed of on merits without regarding these observations as a conclusive or binding opinion on the merits of the respective rights and contentions of the parties at the final hearing of the complaint. In the circumstances, rule is made absolute in terms of prayer clause (a) and the impugned order dated 14th January, 2008 is quashed and set aside. There shall, in the circumstances, be no order as to costs.