IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1829 OF 1997 PETITION NO. 1829 OF 1997 PETITION NO. 1829 OF 1997 Maharashtra General Kamgar ... Petitioners Union & Anr. Vs. M/s Asbestos & Jointings Mfg. ... Respondents Co. Pvt. Ltd., Mumbai & Anr. now known as M/s Champion Jointings Pvt. Ltd. Mr. Jayesh Desai i/by Mr. Kiran S. Bapat for Petitioners. Mr. P.K. Rele with Mr. V.N. Tayade and Mr. R.P. Rele i/by Mr. Piyush Shah for Respondent- Company. CORAM CORAM CORAM : J.P. DEVADHAR, J. : J.P. DEVADHAR, J. : J.P. DEVADHAR, J. DATE DATE DATE : 22ND APRIL, 2008 : 22ND APRIL, 2008 : 22ND APRIL, 2008 P.C. P.C. P.C. :- :- :- 1. During the pendency of the proceedings under the Industrial Disputes Act, 1947, if a complaint is filed under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("1971 Act" for short) and the same is dismissed for non prosecution, Whether the proceeding under the Industrial Disputes Act, 1947 becomes barred under Section 59 of the 1971 Act is the question raised in this petition. 2 2. The petitioner no.2 an employee of respondent No.1 had challenged the dismissal order dated 27/9/1983 by initiating proceedings under Industrial Disputes Act, 1947 (‘1947 Act’ for short). 3. During the pendency of the said proceedings, the petitioners had also filed a complaint (ULP No.684 of 1983) before the Industrial Court at Bombay alleging that the termination of the services of the petitioner No.2 by the respondent No.1 vide letter dated 27th September, 1983 constituted unfair labour practice under the 1971 Act. 4. However, on 1/12/1983, the Advocate for the petitioners informed the Industrial Court that the petitioners do not want to proceed with the complaint. Accordingly by an order dated 1/12/1983, the Industrial Court dismissed the complaint for want of prosecution. 5. Thereafter the proceedings initiated under the 1947 Act culminated into an order dated 25/04/1988 whereby, the Deputy Commissioner of 3 Labour (Conciliation) referred the dispute between the parties to the Labour Court for adjudication. 6. As the respondent-Company raised preliminary objection regarding the maintainability of the reference, the Labour Court inter-alia framed the following issues : 1. Is Reference Exh. 0-1 barred by Section 59 of the M.R.T.U. and P.U.L.P. Act, 1971? 2. Is Reference Exh. 0-1 legally maintainable? 3. If yes, does Workman prove that his service is illegally terminated by first party employer w.e.f. 27/9/1983 ? 4. Does the Company prove that Workman is lawfully dismissed from service w.e.f. 27-9-1983 for grave and serious misconducts as alleged ? 5. Is Workman entitled to reinstatement? 6. What order as to continuity in service and back wages ? 7. What final order ? 7. By the impugned Award dated 20th July, 1996, the Labour Court held that once the provisions of 1971 Act are invoked, by filing a complaint (ULP No.684 of 1983) the bar under Section 59 of the 1971 Act becomes operative. The 4 Labour Court held that where the complaint was withdrawn with an intention to initiate proceedings under any other enactment then the bar under Section 59 would not become operative. In the present case, since the complaint was dismissed for non-prosecution, the bar under Section 59 would be operative. Accordingly, the Labour Court held that the reference in question was barred under Section 59 of the 1971 Act. In view of the above finding, the other issues relating to the merits of the case were not considered. 8. Challenging the aforesaid order of the Labour Court, the present petition is filed. 9. Mr. Bapat, learned counsel appearing on behalf of the petitioners relied upon a Full Bench decision of this Court in the case of C.S. Dixit C.S. Dixit C.S. Dixit vs. vs. vs. Bajaj Tempo Limited, Pune Bajaj Tempo Limited, Pune Bajaj Tempo Limited, Pune reported in 2000 II CLR 719 wherein this Court while considering scope of Section 59 of the 1971 Act, held thus : "20 "20 "20. In our opinion, therefore, mere filing of a complaint under the said Act without anything done in the matter will not attract the bar of Section 59. If the 5 statute of limitation is successfully invoked in a matter before the Industrial Court under the said Act, the bar will not apply. About the new cause of action, also as noted above, there is no question of invoking the bar at all. 21 21 21. We are further of the opinion that if before any effective steps are taken by the Industrial Court under the said Act when the matter is withdrawn then also the bar would not apply. As to what could be the effective steps, the question is to be decided as to the facts and circumstances of the case. It is obviously not possible to enumerate all possible set of circumstances, which in a given case, will induce us to conclude that the effective steps are not taken. At the same time, if effective steps are taken, bar under Section 59 would certainly apply. No party can be permitted to either shop the forum or avoid outcome of its own action on the ground of exigency of convenience." . Accordingly Mr. Bapat submitted that in the present case, since no effective steps were taken in the complaint, the Labour Court was in error in holding that the bar under Section 59 of the 1971 Act was attracted in the present case. 10. Mr. Rele, learned senior Advocate appearing on behalf of the Respondent- Company, on the other hand submitted that the Full Bench decision of this Court relied upon by the petitioners is distinguishable on facts. In that case, the complaint was dismissed on the ground that the remedy was barred by limitation whereas 6 in the present case the complaint has been dismissed for want of prosecution. Mr. Rele further submitted that in the present case, the complaint was dismissed on 1/12/1983, whereas the reference was made only in the year 1988 which clearly shows that the complaint was not withdrawn with a view to initiate proceedings under the 1947 Act. Accordingly, Mr. Rele submitted that there is no infirmity in the impugned Award and hence the petition is liable to be dismissed. 11. Having heard the learned counsel on both sides, in my view the decision of the Full Bench of this Court in the case of C.S. Dixit (supra) C.S. Dixit (supra) C.S. Dixit (supra) would be squarely applicable to the facts of the present case. As held by the Full Bench of this Court, the bar under Section 59 of the 1971 Act will come into operation, only if effective steps under the complaint were taken by the Industrial Court. In the present case, before any effective steps could be taken, the counsel for the complainant at the initial stage itself stated that the complainant does not wish to proceed with the complaint and accordingly the complaint was dismissed for want of prosecution. There is nothing on record to suggest that the Industrial 7 Court had taken any effective steps in the complaint filed by the petitioners. Therefore, the Full Bench decision of this Court would be applicable to the present case. 12. The argument of the learned counsel for the respondent-Company that having got dismissed the complaint unconditionally, the petitioners could not pursue the remedy under the 1947 Act, does not deserve acceptance, because whether the complaint was dismissed unconditionally or not, so long as effective steps were not taken under the complaint, the bar under Section 59 of the 1971 Act would not be applicable. In other words even in cases, where the complaint is dismissed for want of prosecution, so long as effective steps were not taken pursuant to the complaint, the bar under Section 59 of the 1971 Act would not be operative. Similarly, the fact that the proceedings under the 1947 Act have been pursued belatedly may be a ground to deny relief under that Act, but the delay in pursuing the remedy under the 1947 Act by itself cannot be a ground to hold that the bar under Section 59 of the 1971 Act is applicable to the facts of the present case. 8 13. In this view of the matter, in my view, the Labour Court was clearly in error in holding that the bar under Section 59 of 1971 Act is applicable to the facts of the present case. Accordingly, the Award dated 20th July, 1996 passed by the Labour Court is quashed and set aside and the Labour Court is directed to dispose of the Reference on merits and in accordance with law. 14. Rule is made absolute in the above terms. However, with no order as to costs. ( J.P. DEVADHAR, J.) J.P. DEVADHAR, J.) J.P. DEVADHAR, J.)