1 WP-6004-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6004 OF 2011 WITH CIVIL APPLICATION NO.2323 OF 2011 Dattatraya Ganpat Gaikwad and ors. ..Petitioners Vs Sunita Devi Singhaniya Hospital and Medical Research Centre ..Respondent -- Mr.S.S.Pakale i/b.Mr.Kirankumar Phakade, for petitioners. Ms.Meena Doshi, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 9 th NOVEMBER, 2011 P.C.: Heard Mr.S.S.Pakale, learned counsel for the petitioners and Ms.Meena Doshi, learned counsel for the respondent. 2] Rule. Learned counsel for the respondent waives service. By 2 WP-6004-11.odt consent of the parties, Rule is made returnable forthwith and is heard finally. 3] By this petition, the petitioners have challenged the judgment and award dated 25 th February, 2011 passed by the learned Member, Industrial Tribunal, Maharashtra at Thane in Reference (IT) No.37 of 2003. By that judgment, the Tribunal has dismissed the Reference. The facts and circumstances giving rise to filing of the present petition, briefly stated, are as under : 4] On 26 th August, 2001, Shri.Anand Dighe, Leader of a political party was admitted in the respondent - hospital as he met with an accident. He died in the hospital. His followers entered the hospital and destroyed the properties of the hospital including the equipments, machineries, furniture, fixtures, vehicles and ambulances etc. The hospital was reduced to ruins and there was complete break down of machineries as well as destruction of the hospital due to civil commotion and other circumstances beyond the control of the Management of the hospital resulting in inability to run the hospital. The employees were given lay off by notice dated 15 th 3 WP-6004-11.odt September, 2001. On 30 th October, 2001, the respondent hospital declared closure effective from closing hours of 31 st October, 2001. The respondent Management terminated services of the employees from 1 st November, 2001 and informed that they will be paid the notice pay in lieu of the notice and closure compensation in accordance with law. The details of payment in final statement of dues of the employees together with the cheque was enclosed along with notice dated 30 th October, 2001. 5] The petitioners through their Union – Shramik Sena raised industrial dispute by addressing a letter in December, 2001 to the Deputy Commissioner of Labour, Thane District, Thane. Along with that letter, they enclosed the demand letter dated 23 rd November, 2001 as also justification statement. It was set out in that letter that there was no response from the Management in regard to the demand of the workmen. Since there was no response from the concerned Authorities, Writ Petition No.4108 of 2003 was instituted by Shramik Sena in this Court for directing the State Government and the Deputy Commissioner of Labour, Thane to hold conciliation proceedings and to take such other necessary action / decision or 4 WP-6004-11.odt steps as contemplated under the Industrial Disputes Act, 1947 (for short “the 1947 Act”) . Upon hearing both sides, by order dated 1 st August, 2003, this Court directed the Deputy Commissioner of Labour, Thane to forthwith initiate conciliation proceedings and make a report within four weeks from the date of the order. Pursuant to this direction, the Addl. Commissioner of Labour, Mumbai, in exercise of powers under Section 12(5) of the 1947 Act, referred the following dispute for adjudication to the Industrial Court : “Management should revoke closure notice dated 30 th October, 2001 and allow the workmen to report for duty forthwith and also pay full wages to the workmen for the period they were not allowed to work along with their continuity of service.” 6] Accordingly, statement of claim was filed by the petitioner in January, 2004 before the Industrial Tribunal, Thane being Reference (IT) No.37 of 2003. The respondent filed written statement and resisted the claim made by the petitioners. It was contended that the Reference and the proceedings in Reference are barred by Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of 5 WP-6004-11.odt Unfair Labour Practices Act, 1971 (for short “the 1971 Act”). It was further contended that Chapter V-B of the 1947 Act has no application in the matter in view of the definition of “Industrial Establishment” in Section 25-L(a) and consequently, Sections 25-N and 25-O of the 1947 Act are not applicable. 7] The parties led oral as well as documentary evidence before the Industrial Tribunal. On the basis of the material on record, the Tribunal came to the conclusion that the Reference is barred by Section 59 of the 1971 Act. It also came to the conclusion that Chapter V-B of the 1947 Act is not applicable. Consistent with these findings, the Tribunal dismissed the Reference. It is against this order the petitioners have instituted present petition. 8] In support of the petition, Mr.Pakale strenuously contended that the Tribunal committed several errors of law apparent on the face of record. He submitted that this Court by order dated 1 st August, 2003 passed in Writ Petition No.4108 of 2003 had directed the Deputy Commissioner of Labour to forthwith initiate conciliation proceedings and submit a report within four weeks from the date of order. Since 6 WP-6004-11.odt the conciliation proceedings failed, by order dated 27 th October, 2003, the Addl. Commissioner of Labour made Reference to the Industrial Court. It was, therefore, not open to the Tribunal to hold that the Reference is barred by Section 59 of the 1971 Act. He invited my attention to the provisions of Section 25-O of the 1947 Act which lays down procedure for closing down an undertaking. He also invited my attention to Section 25-N of the 1947 Act which lays down condition precedent for retrenchment of workmen. He submitted that the respondent has not complied with the mandatory requirements laid down under Section 25-N and 25-O of the 1947 Act. He submitted that Section 25-K lays down that the provisions of Chapter V-B shall apply to the industrial establishments. Section 2(ka) defines expression “Industrial Establishment” or “Undertaking” to mean an establishment or undertaking in which any industry is carried on. He, therefore, submitted that the respondent clearly falls within the definition of “Industrial Establishment” or “Undertaking” given in Section 2(ka) of the 1947 Act. Once it is established that the respondent is an industrial establishment, having regard to Section 25-K the provisions of Chapter V-B shall apply to the respondent. The respondent will have to follow the mandatory provisions of 7 WP-6004-11.odt Sections 25-O and 25-N of the 1947 Act. In the instant case, the respondent has not complied with the mandatory requirements of Sections 25-N and 25-O and therefore, the Industrial Court ought to have allowed the Reference. 9] He further submitted that the Tribunal committed serious error in holding that the present Reference is barred by Section 59 of the 1971 Act. He submitted that the issues before the earlier proceedings and in the present Reference are materially different. The facts are also not the same. He also submitted that Section 59 has to be strictly construed and, if so construed, it ought to be held that the Reference was not barred by Section 59 of the 1971 Act. In support of this preposition, he relied upon the judgment of this Court in the case of Indian Hotels Co. Ltd. Vs. D.T.Pandey, 1991(62) FLR 164. 10] On the other hand, Ms.Meena Doshi supported the impugned order. She submitted that the Industrial Tribunal rightly came to the conclusion that the present Reference is barred by Section 59 of the 1971 Act. She invited my attention to the proceedings in Complaint 8 WP-6004-11.odt (ULP) No.450 of 2001 as also Complaint (ULP) No.517 of 2001. She submitted that the Tribunal considered the pleadings in Complaint (ULP) No.517 of 2001 as also the judgment and award dated 14 th June, 2005 passed by the Industrial Court, Thane in Complaint (ULP) No.517 of 2001. After considering the pleadings as well as the judgment and award, the Tribunal rightly held that the present Reference was barred by Section 59 of the 1971 Act. 11] She further submitted that basically the provisions of Chapter V-B of the 1971 Act are not applicable, as the respondent is not a Factory as defined in Clause (m) of Section 2 of the Factories Act, 1948. She submitted that having regard to Section 25-L(a) of the 1947 Act which defines expression “Industrial Establishment”, the recourse cannot be had to the definition of industrial establishment or undertakings given in Section 2(ka) of the 1947 Act for considering applicability of the provisions of Chapter V-B. Once it is held that the respondent is not an industrial establishment, the provisions of Sections 25-N and 25-O are not applicable. 12] I have considered the rival submissions made by learned 9 WP-6004-11.odt counsel appearing for the parties. It is not in dispute that earlier, Kamgar Utkarsh Sabha which is a registered trade union representing employees of the respondent – hospital, had filed a complaint under Section 28 read with Item No.6 of Schedule II and Items 9 and 10 of Schedule IV of the 1971 Act alleging that respondent had engaged in unfair labour practice covered by these items. It was contended therein that before the respondent declared closure, it ought to have obtained prior permission from the appropriate Authorities under Sections 25-N and 25-O of the 1947 Act. Since closure was declared without prior permission from the appropriate Authorities, it was illegal, bad in law and contrary to the provisions of the 1947 Act. In that complaint, further relief was claimed to provide work to the employees who were on the muster roll of the respondent – hospital. In the statement of claim filed by the petitioners, declaration was sought that the closure of the respondent – hospital is illegal, unjust and arbitrary and the respondent be directed to allow the workmen to report for duty and pay wages for intervening period. 13] Section 59 of the 1971 Act reads as under : 10 WP-6004-11.odt 59.Bar of proceedings under Bombay or Central Act:- If any proceeding in respect of any matter falling within the purview of this Act is instituted under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or as the case may be, the Bombay Act, then no proceedings shall at any time be entertained by the Industrial or Labour Court under this Act. Perusal of Section 59 indicates that if any proceeding in respect of any matter falling within the purview of this Act (the 1971 Act) is instituted under this Act (the 1971 Act), then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or as the case may be the Bombay Act. The Tribunal has considered this aspect in paragraphs 7 to 9 of the impugned order. The Tribunal came to the conclusion that in the Complaint (ULP) No.517 of 2001, identical reliefs were claimed. The proceedings in that complaint were in respect of the matter falling within the purview of the 1971 Act and consequently, the Reference 11 WP-6004-11.odt could not be entertained. I do not find that the Tribunal committed any error in arriving at this conclusion. The Tribunal considered the pleadings and evidence on record in Complaint (ULP) No.517 of 2001 as also considered paragraph 3 of the judgment dated 14 th June, 2005 in the said complaint and came to the conclusion that the identical issue raised in the present Reference was decided in Complaint (ULP) No.517 of 2001. Mr.Pakale, however, contended that the issues in Complaint (ULP) No.517 of 2001 and present Reference are materially different and are not based upon the same set of facts. I do not find any substance in this submission. In my opinion, the Tribunal rightly came to the conclusion that the present Reference was barred by Section 59 of the 1971 Act. 14] In so far as the contention that the respondent did not comply the mandatory requirements of Sections 25-N and 25-O of the 1947 Act is concerned, in my opinion, the said contention is without any merit. Section 25-L(a) defines expression “Industrial Establishment” and it reads as under : “25-L.Definitions.- For the purposes of this Chapter, - 12 WP-6004-11.odt (a) “Industrial establishment” means - (i) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1947); (ii) a mine as defined in clause (j) of sub-section (1) of Section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); (b) notwithstanding anything contained in sub-clause (ii) of clause (a) of Section 2, - (i) in relation to any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or (ii) in relation to any corporation not being a corporation referred to in sub-clause (i) of clause (a) of section 2] established by or under any law made by Parliament, the Central Government shall be the appropriate Government. For the purpose of considering applicability of Chapter V-B, the definition of “Industrial Establishment” given in Section 25-L(a) is material and one cannot have recourse to definition of “Industrial Establishment” or “Undertaking” given in Section Section 2(ka) of the 13 WP-6004-11.odt 1947 Act. Having regard to the said definition, it cannot be said that the respondent satisfies the requirement laid down in Section 25-L(a) of the 1947 Act and it, therefore, will have to be held that the respondent is not an Industrial Establishment and consequently, the provisions of Chapter V-B are not applicable to the respondent. 15] In the light of the aforesaid position, I do not find that the Tribunal committed any error of law on the face of record. The findings recorded by the Tribunal are based on evidence on record. It also cannot be said that the impugned order suffers from any perversity. 16] In the result, petition fails and the same is dismissed. Rule is discharged. In the circumstances, there shall be no order as to costs. In view of disposal of Writ Petition, Civil Application No.2323 of 2011 does not survive and the same stands disposed of. [ R.G.KETKAR, J. ]