:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 89 OF PETITION NO. 89 OF PETITION NO. 89 OF 2009 2009 2009 Mid-Day Multimedia Ltd. ... Petitioner. V/s. Mrs. Bhagyashree B. Rane & Anr. ... Respondents. Mrs. Vasanti Kunder for the Petitioner. Mr. U.B. Bhatt for Respondent No.1. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 02ND 02ND 02ND MARCH 2009. MARCH 2009. MARCH 2009. P.C. P.C. P.C. : : : . Rule. Respondents waive service. By consent, Rule made returnable forthwith. Heard both sides. 2. The Petitioner is aggrieved by an order passed below Exhibit U-3 dated 2nd January 2009, by which the learned Presiding Officer of the Xth Labour Court at Mumbai, has granted Interim Relief during pendency of the Reference (IDA) No.194 of 2008. Allowing the interim relief application, the Presiding Officer has directed the Petitioner to allow the Respondent to resume duties as Accounts Executive- cum-Cashier with immediate effect. It is directed that the Respondent be provided work and pay salary for the work done by her. The Respondent was permitted to report for duty immediately. :2: 3. It is not disputed before me that the Reference before the Labour Court is under Section 10(1)(d) r/w. Section 12(5) of the Industrial Disputes Act, 1947 (I.D. Act for short). 4. The Reference is at the instance of Respondent No.1 before me. It is her case that she was working as a Accounts Executive-cum-Cashier with the Petitioner on a monthly salary. She has put in about 20 years of service. Her services are terminated with effect from 25th April 2007. She demanded re-instatement with continuity of service and full back-wages from the date of termination. 5. It is not in dispute before me that the matter went in conciliation before the Conciliation Officer. It cannot be disputed that upon his report being submitted (popularly termed as "Failure Report") that the appropriate Government has referred the matter to the Labour Court under I.D. Act. That itself shows that the parties were not willing to put an end to the dispute before the Conciliation Officer. The conciliation proceedings thus failed. There was no conciliation. 6. The stand of the Petitioner was that on the relevant date she reported for work but was prevented and obstructed from working by the Manager. This amounts to her wrongful and illegal termination. On the other hand, the Management’s stand is that she was not prevented but :3: she left the services voluntarily. This is the dispute which has to be decided after both sides place their cases before the Labour Court. That can be done by permitting them to lead the oral and documentary evidence so also making their arguments. That stage is yet to be reached, admittedly. 7. At an interlocutory stage, what the First Respondent requested the Court below was that interim order be passed, permitting her to work with the Petitioners, on the same terms and conditions. 8. I have perused a copy of the application for interim relief which is annexed as Annexure ‘G’ to the Petition (page 49 of the paper-book). 9. The Application reads thus :- "1. The Second Party workman states that during the hearing before the Conciliation Officers a novel stand was taken by the first party company that they have not terminated her services but the said workman is not reporting on duties. This made the second party workman to write a letter dated 14.1.2008, allowing her to resume on her duties forthwith. The said letter of the said workman was replied by the first party company on 21.1.2007 (it seems that the date is wrongly typed), stating :4: therein that they have not received the copy of Failure Report from the Dy. Commissioner of Labour and on the receipt of the Failure Report they shall revert their stand in respect of her letter dated 14.1.2008. 2. The Second party workman therefore prays : (a) That the second party workman prays that as agreed by the first party company in their letter dated 21.1.2007, she is allowed to resume her duties during the pendency of this reference. (b) It is further prayed that rest of the issues arising out of present reference be adjudicated finally deciding this reference. (c) Any other appropriate order of this Hon’ble Court to meet the end of justice in facts and circumstances of the above matter." 10. The learned Counsel appearing for the Petitioner contended that on this application for interim relief is a Reply Affidavit filed and it is clearly stated that interim reliefs based upon the letter dated 21st January 2008 cannot be granted. There being a serious dispute as to whether the services have been allegedly terminated or not, this was not a fit case for grant of interim relief. :5: She submits that the order suffers from total non-application of mind and can be safely termed as perverse. She submits that the learned Judge has exceeded his jurisdiction in granting Interim orders in the pending Reference while not disputing the powers to grant such a relief, it is urged that the Court below should satisfy itself as to whether a prima facie case has been made out. The request ought to have been considered in the light of the application made and the reply thereto. The Petitioner has clearly stated in the reply that on 24th April 2007 at around 5.45 p.m., the First Respondent approached the Group Head (Human Resources and Personnel) of the Petitioner and handed over her Identity Card. She stated that she is no longer interested in serving the Company and left the assignment without any reason. She has not reported for work thereafter. In such circumstances, there was no question of making any statement during the conciliation proceedings that the Petitioner has not prevented the First Respondent from reporting for work. Assuming without admitting that such a statement could be attributed to the Petitioner, yet, the subject statement must be seen in the backdrop of the reply filed and the case set out, namely, voluntarily leaving services by the First Respondent. In such circumstances, no case for interim relief much less final in nature, is made out and the Petition be allowed. 11. On the other hand, the First Respondent’s Advocate :6: submitted that this is a Writ Petition under Article 226 of the Constitution of India. This is not a Court of Appeal. This Court cannot re-appreciate and re-appraise the material before the Court below. That too at an interlocutory stage. The Labour Court has exercised its discretion based upon the material produced and this Court should not substitute its views with that of the Presiding Officer. For all these reasons and when the First Respondent will be working subject to the outcome of the Reference, then, no prejudice is caused to the Petitioner. The Petition be, therefore, dismissed. 12. With the able assistance of the Counsel appearing for both sides, I have perused the Petition and Annexures thereto. It is clear from a perusal of the Application for interim relief that the plea raised therein is based upon the letter dated 21st January 2008. A copy of this letter is annexed at page 44 of the Petition Paper-book, as Annexure ‘E’. The Petitioner had received a letter dated 14th January 2008 from the First Respondent. In her letter she stated that during conciliation proceedings, the Management’s say is recorded that the First Respondent is not terminated from employment but she is not reporting for work on her own. Therefore, the First Respondent desires to know whether she can resume her duties immediately. She stated that she is unemployed and in dire need of a source of livelihood. :7: 13. It is this letter which is replied by the Petitioners and they state that they have not received a copy of the Failure Report from the Deputy Commissioner of Labour. On receipt of the copy, the Management will revert back in respect of the letter dated 14th January 2008. A perusal of both letters leaves me in no manner of doubt that at no stage that the Petitioner has stated that the First Respondent can report for work. The workman has written a letter based upon her understanding of the Management’s stand taken before the Conciliation Officer. The Management has not admitted or accepted her version. The matter is admittedly not settled in Conciliation Proceedings. Admittedly, there is a Failure Report. That is how the Reference was made to the Labour Court. In these circumstances, without anything more being placed on record and on events preceding the Failure Report, I fail to understand as to how the Presiding Officer can grant the subject interim relief. In the peculiar facts of this case, the present relief at the interlocutory stage is a final relief. There is nothing remaining to be adjudicated now if the Presiding Officer’s views are to be accepted. He ought to have applied his mind to the interim relief application and the reply thereto. The contents of the same are disputed by the Petitioner. Apart from this, there is nothing placed on record by the First Respondent to support her case. In the Impugned Order there are absolutely no reasons assigned as to why the workman’s version is being accepted. In para 6 of the :8: Impugned Order, the case is set out and it is held that the First Respondent is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Para 7 once again refers to the First Respondent’s case and the Conciliation Proceedings. Thereafter, the learned Judge rightly refers to the stand of the Management that it has not terminated the services of the First Respondent but she has on her own has stopped reporting for work. In para 8 the learned Judge revert back to the stand of Respondent No.1 Para 9 of the Impugned Order shows that the learned Judge has virtually concluded that the termination is wrongful. The Reference is yet to be decided. As to how the said conclusion can be reached is not clear to me at all. The written statement is yet to be placed on record. Further, both sides have not produced any documents. In such circumstances, it cannot be concluded that there being no enquiry, the termination is wrongful. 14. Assuming without admitting that the learned Judge has powers to grant interim relief in a Reference made under the above statutory provisions, yet, it is needless to state that before granting a relief of this nature, the Court must be satisfied that a strong prima-facie case is made out. Merely because the Interim Relief Application relies upon some events during the conciliation proceedings, does not mean that, in this case, a prima-facie case is made out, leave alone a strong one. :9: In such circumstances, the Presiding Officer could not have concluded that the First Respondent has made out a prima-facie case or that balance of convenience is in her favour. It is not as if the First Respondent is without any relief. In the event, she succeeds, the Management can be directed to take her back in service or grant her such other relief which is permissible in law. However, merely on the basis of the contents of the interim application and the letters dated 14th January 2008 and 21st January 2008, such a relief could not be granted. It is clear that the order of the learned Single Judge is vitiated by error apparent on the face of the record so also by total non-application of mind. The learned Judge failed to notice and rather overlooked the Reply filed by the Petitioner. He has misdirected himself completely. The order is based on a assumption which is not borne out by the record. 15. It is not necessary to reiterate the settled principles. Article 226 empowers this Court to issue a Writ of Certiorari for quashing an order of a subordinate Court or Tribunal, if it is vitiated by error apparent on the face of the record. Further, if the learned Judge/Presiding Officer has exceeded his powers and if it is demonstrated that he has done so, then, under Article 226 , this Court has jurisdiction to quash and set aside the order. I am not in agreement with the learned Counsel appearing for the First Respondent that this Court would :10: be in error if it interferes at the interlocutory stage and with a Discretionary order. Even interlocutory orders can be set aside in exercise of this jurisdiction is by now well settled. No authority or ruling needs to be referred to in this context. Once the order is vitiated in the manner demonstrated above, then, I would be failing in my duty, if I do not interfere and quash so also set aside the Impugned Order. Accordingly, the order under challenge is set aside. 16. In the result, Rule is made absolute in terms of prayer clause (a). 17. However, there will be no order as to costs. 18. It is clarified that all observations made by me are in the context of the Decision of the Court below on an Interlocutory Application. My observations are tentative, prima-facie and should not influence the Court below while deciding the case finally. All pleas of both sides on merits, are kept open. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)