[1] IN THE HIGH COURTOF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1156 OF 2002 IN WRIT PETITION NO. 2875 OF 2002 IN COMPLAINT (ULP) NO. 465 OF 2002 PAC Computers LTD. & Ors. ... Appellants. Versus Bharatiya Shramajivi Sabha and Ors. ... Respondents. Mr. A.S.Rao for the appellants. Mr. N.M.Ganguli for respondents. CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : January 29, 2009. : January 29, 2009. : January 29, 2009. [2] P.C. 1. By this appeal, the appellant challenges the order dated 18th November, 2002 passed by the learned Single Judge of this Court in Writ Petition No. 2875 of 2002. By that order the learned Single Judge of this Court dismissed the writ petition filed by the appellants. The appellants had filed writ petition No. 2875 of 2002 challenging the order dated 30th September, 2002 passed by the Industrial Court. 2. The brief facts that are relevant for deciding this appeal are that the respondent-Trade Union filed complaint alleging that respondent No. 1 to 6, who are the present appellants, had jointly and severally engaged in unfair labour practices. An application for interim relief was also filed. It appears that the appellants appeared before the Industrial Court on 6th April, 2002. They wanted time to file reply to the application for interim relief and, therefore, they submitted undertaking to the Court on 6th April, 2002 that they will not discharge or dismiss any of the employee mentioned in Schedule-B to the complaint, till they file reply to the application for interim relief [3] and that they will also not sell the plant and machinery and tools till the reply is filed. Admittedly, the respondents filed reply to the application for interim relief on 10.4.2002. They also filed their written statement on 10.6.2002 and, thereafter, the services of the employees were terminated from 21st June, 2002 till 19th July, 2002. Admittedly though services of the employees were terminated after filing of the complaint, no application was made by the Complainant-Union to amend its complaint amending the prayer clause in relation to the termination of the services of the employees. In this situation, application for interim relief initially filed by the complainant was taken up for consideration. It was urged on behalf of the complainant that because the reply filed to the application for interim relief by the present appellant is a short reply, it should not be deemed to be a reply and, therefore, the termination of the services of the employees effected between 21st June, 2002 and 19th July, 2002 should be treated as done in breach of undertaking. It was also contended that the Court should therefore direct reinstatement of the employees whose services were terminated during the aforesaid period. An objection was raised to the consideration [4] of the application for interim relief on behalf of the employer-appellant that during the pendency of the complaint, services of the workers have been terminated and unless by amending the complaint termination of the employees is challenged, no interim relief can be granted. 3. Industrial Court passed order on the interim application. That order reads as under :- " ORDER i) Application of Exh.U-2 is hereby partly allowed. (ii) In view of the breach of the undertaking of Exh.C-2, for preserving the status-quo ante partly, the Respondents are hereby directed to pay the wages for the month of May and June, 2002 to the employees of Annex.’B’, except that of employees at Sr.No.1 and 4 and also deposit the 50% of wages of these employees except P.1 [5] & 4 from July 2002 onwards till the disposal of this Complaint. (iii) The payment of the wages for the month of May and June 2002 be made within 30 days from the date of this order and the arrears of 50% wages for the months July to September 2002 be deposited in the Court within 30 days. 50% wages of the subseeding months be deposited on or before 15th day of the subseeding months. (iv) Parties to take expeditious steps for carrying out the amendment, consequential amendments if they choose so or to take the appropriate action before the appropriate forum. (v) No order as to cost." It is clear from this order that the principal reason given by the Industrial Court for granting the interim relief is the alleged breach of undertaking committed [6] by the appellants. Against this order, the writ petition was filed in this Court challenging that order. It is clear from the order of the leaned Single Judge that even the learned Single Judge understood the order granting interim relief to have been passed for alleged breach of undertaking committed by the appellants and held that as the breach of undertaking was committed by the appellants, the Industrial Court was justified in granting the interim relief. 4. We have heard the learned Counsel on both sides. 5. It is clear from the record that as the reply was filed on 10.4.2002 and written statement was filed on 10.6.2002, there is no question of the order terminating the services of the employees of the appellant from 21st June, 2002 to 19th July, 2002, being in breach of the undertaking given to the court on 6.4.2002. In our opinion, as it is an admitted position that the date on which the application for interim relief was taken up for consideration, the services of the employees were terminated and admittedly by that date neither any fresh complaint was filed putting the termination under challenge nor any [7] application for amendment to the complaint was made putting the termination under challenge. The position in law would have been that the employees have accepted the termination of their services. In our opinion, therefore, while considering whether there was a prima facie case in favour of the complainant, it was obligatory on the part of the Court to proceed on the assumption that the termination of the services of the employees was brought about and employees have not put that termination under challenge. On matter being viewed from that point of view, in our opinion, it was not a case for granting any interim relief. In any case, the order of the Industrial Court shows that principal reason given by the Industrial Court for granting interim relief was that the undertaking given by the appellants on 6.4.2002 has been breached by the employer. It is clear from the record that there is no breach of undertaking committed by the appellants. 6. Taking overall view of the matter, therefore, in our opinion, the appeal succeeds. It accordingly is allowed. The order impugned in the appeal is set aside. The application for interim relief filed by the respondent in Complaint ULP No. 465/2002 is rejected. [8] 7. The appeal is disposed of. 8. Notice of Motion No. 3464 of 2002 is disposed of. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]