1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PEITION NO.2976 OF 2008 Siemens Workers Union. ...Petitioner. Versus M/s.Siemens Ltd. & Ors. ...Respondents. ....... Mr. C.U. Singh, Senior Advocate with Mr.Bennet D'costa for the Petitioner. Mr. P.K. Rele, Senior Advocate with Mr. P.N. Anaokar and Mr. Rahul D. Oak for the Respondents. ...... CORAM : DR. D.Y. CHANDRACHUD, J. April 28, 2008. P.C.: The Industrial Court by the order which is impugned in these proceedings, has declined interim relief during the pendency of a complaint under Item 4(e) of Schedule II and Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. 2. The First Respondent has an industrial establishment at Nasik. 142 workmen in diverse grades were promoted by the 2 management as Trainee Officers in July 2007. The letter of promotion envisaged that these promotees would be placed on training for 12 months and after successful completion thereof, would be placed on probation for a further period of 12 months. The orders of appointment envisaged that on acceptance of the appointment as trainee officer, the settlement that is applicable to workmen shall cease to apply and that the officers would not be entitled to continue as members of the workmen's Union or to be represented by the Union. All the 142 workmen accepted promotion to the Officers' cadre which, the Court has been informed, is to the Junior Executive grade. According to the Counsel appearing on behalf of the Management, there is as a result, an upward increase of emoluments to the extent of Rs.3,000/- per worker or thereabouts. This position has not been in dispute before the Court. 3. The grievance of the Petitioner is that a similar exercise was sought to be carried out at the Kalwa Unit in May 2007 and a vacancy notice was put up notifying vacancies in the cadre of Trainee Officers. The Union moved the Industrial Court at Thane which 3 passed an interlocutory order restraining the First Respondent from giving the work of the workmen in the Switch Board Unit to any employee working under the management or staff cadres and restraining the management from reducing the present strength of employees in the Switch Board Unit without following due process of law. This order was confirmed by a Learned Single Judge of this Court on 21st November 2007. The Learned Single Judge held that no case was made out for the exercise of the supervisory jurisdiction under Article 227 of the Constitution. 4. In the present case, the interim relief that has been pressed at this stage is for direction restraining the management from giving the work of persons working in the category of workmen to Trainee Officers and/or to any employee working in the management or staff cadre. While declining the prayer for interim relief, the Industrial Court noted that the justification of the management was that promotions were granted to improve the quality of work and that the workmen concerned accepted promotion in order to obtain an increase in the salary. That, the Industrial Court held, cannot be said 4 to be detrimental to the interests of the workmen, nor did they make any protest against the grant of promotion. At this juncture, when evidence was still to be adduced at the hearing of the complaint, the Industrial Court was of the view that it was not possible to draw an inference to the effect that the action of the management was motivated to undermine the strength of the Union so as to constitute an unfair labour practice under Item 4(e) of Schedule II and Items 9 and 10 of Schedule IV. The employer, it was found, was entitled to re-organize work and it would not be permissible for the Court to interdict the management from doing so. 5. Counsel appearing on behalf of the Petitioner submitted that an unfair labour practice under Item 4(e) of Schedule II consists of the act of management in encouraging or discouraging membership of a Union by giving unmeritted promotions to certain employees with a view to sow discord amongst the other employees or undermine the strength of the union. It was urged that the management has in the present case granted promotions without applying any performance test or qualifications and the result of the 5 grant of promotion would be that 142 out of 202 employees would cease to be in the workmen's cadre. This, it was urged, is to suppress the Petitioner Union and will constitute an unfair labour practice under Item 4(e) of Schedule II. Finally, relying upon certain charts annexed at Exh.C and D, it was sought to be urged that the workmen who are promoted from the workmen's cadre to the officers' cadre would continue to do the same work as before. 6. On the other hand, it has been urged on behalf of the management that reorganization of work lies within its sole discretion. In the present case, it was urged that each of the workmen selected for the grant of promotion has accepted the promotion without protest or grievance and that as a result, there is a substantial increase in the pay packet of the workmen. Secondly, it was submitted that the workmen have been placed as Trainee Officers on promotion for a period of 12 months and by its very nature, it would be impossible to implement a scheme of training by confining the management to a particular nature of work which alone as trainees, the new promotees should be required to perform. Learned Counsel stated that as a 6 matter of fact, some part of the existing work may remain the same or may continue, but there will be additional responsibilities analogous to the dominant nature of work of an Executive Officer in the Junior Executive Cadre. 7. This Court must be mindful of the limited extent of interference permissible in the exercise of the supervisory writ jurisdiction particularly against an interlocutory order passed by the Industrial Court. Promotions were granted as far back as in the middle of July 2007 and by the date on which the present proceedings have come up before the Court, well over nine months have elapsed. 142 workmen who were promoted as Trainee Officers have accepted their promotions and at the present point of time, are working as Trainee Officers in the promoted cadre. The interference of the Court to interdict their promotions would not be warranted. In fairness, it may be noted that no such prayer was pressed when submissions were urged on behalf of the Petitioner. The relief that has been sought is to the effect that the management should be restrained from assigning any work of a workman to the Trainee Officers. The grant 7 of such relief would not be appropriate in the exercise of the supervisory jurisdiction and would also not be consistent with the reality of the industrial situation. As a Trainee Officer, a person who has been promoted from the rank of a workman cannot be heard to contend that all the work that he performs must be exclusively of a particular nature or that he shall not be assigned any work having a direct or indirect relationship to the work of a workman. The demarcation of functions on the industrial shop floor is part of managerial functions and a simplistic approach cannot be adopted by the Court in passing such orders. The management must be left in its discretion to reorganize its work and to allot its work in such a manner as would best promote the ends of business. Undoubtedly, in a complaint of unfair labour practices, the Court would have jurisdiction to determine as to whether the promotions which have been given are mala fide or an eye wash but that by the very nature of the matter would warrant recording of evidence at the trial of the complaint of unfair labour practices. At an interim stage, such an inference cannot be drawn. The unfair labour practice under Item 4 (e) of Schedule II consists of encouraging or discouraging 8 membership of a Union and postulates an act of management in discriminating against employees by giving unmerited promotions to certain employees with a view to sow discord amongst other employees or to undermine the strength of the Union. These are evidentiary matters on which the Court cannot draw an inference at the interlocutory stage. The nature of the relief that has been pressed in the present case at the interim stage cannot be granted since the effect thereof would be to seriously undermine the discretion of the management in providing a complete and holistic training to erstwhile workmen promoted to the officers' cadre. Counsel appearing on behalf of the management has, however, assured the Court that while some part of the existing work may remain or continue, the erstwhile workmen would be assigned additional responsibilities whereby the dominant nature of their work would be analogous to that of Executive Officers in the Junior Executive cadre. This assurance is accepted. 8. For all these reasons, no case is made out for the exercise of the jurisdiction of this Court under Articles 226 and 227. Parties 9 are, however, at liberty to move the Industrial Court for an expeditious disposal of the complaint and in the event such an application is made, the Learned Trial Judge is requested to consider the request and pass necessary orders consistent with the exigencies of his own work. In the event that it is possible for the Industrial Court to set down an expeditious time schedule, consistent with other expedited complaints and other urgent work, the Industrial Court may consider doing so within four months from the date of the reopening of the Court after the Summer Vacation. All the observations contained in the order of the Industrial Court and in the present order are confined to the disposal of the application for interim relief and shall not preclude the Industrial Court from dealing with the complaint on merits at the final hearing. 9. The petition is dismissed. ......