WP/5413/1996 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5413 OF 1996 Maharashtra State Road Transport Corporation, Mumbai ... Petitioner V/s. State Transport Staff Association, Mumbai & Ors. ... Respondents Mr. G.S. Hegde for the Petitioner. Mr. V.P. Vaidya for Respondent Nos.1 and 2. CORAM : SMT. NISHITA MHATRE, J. DATE : 28 TH OCTOBER, 2010. ORAL JUDGMENT : 1. This Writ Petition has been filed against the Judgment and Order dated 21st August, 1996, passed by the Industrial Court, Mumbai in Complaint (ULP) No.1207 of 1988. By this order, the Industrial Court has declared that the petitioner has indulged in an unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”) on and from 20th July, 1988. 2. The grievance of the petitioner in the present Petition is that the Industrial Court has passed the impugned order without taking note of the findings of the Labour Court, WP/5413/1996 2 Mumbai in Application (IDA) No.457 of 1987 filed by the respondent against the petitioner-Corporation for the same relief. The other objection to the impugned order is that the Industrial Court has declared that there is an unfair labour practice only because no notice of change has been issued by the petitioner-Corporation under Section 9A of the Industrial Disputes Act, despite a notification having been issued in 1957 exempting the erstwhile Mumbai City Road Transport Corporation, now known as the Maharashtra State Road Transport Corporation, i.e. the petitioner herein, from the provisions of Section 9A of the Industrial Disputes Act, 1947, (for short “the I.D. Act”). 3. The facts in brief are as follows : . The respondent No.2 was employed as a “Plumber” with the petitioner from 1st October, 1977. It appears that on recommendations made by the Joint Committee of the petitioner-Corporation and several Unions representing the workmen of the petitioner-Corporation, it was decided to introduce holidays on the second and fourth Saturdays for the ministerial staff at the Regional Offices and the Central Office/Central Stores of the petitioner-Corporation. This recommendation was reiterated from time to time by the WP/5413/1996 3 Corporation by issuing circulars. The respondent No.2 started remaining absent on the second and fourth Saturdays. Memos were issued to him and wages were deducted for his absence on those days. Complaint (ULP) No.1207 of 1988 was filed by respondent No.2 complaining of unfair labour practices indulged in by the Corporation under Items 9 and 10 of Schedule IV of the MRTU & PULP Act. The petitioner- Corporation opposed the said complaint and stated that an Application (IDA) No.457 of 1987 for the same relief was already pending in the Labour Court, Mumbai. 4. This application, filed under Section 33C(2) of the I.D. Act, was dismissed on 7th August, 1993. The Labour Court held that the applicant, i.e. Respondent No.2 herein, was not entitled to the paid holidays on the second and fourth Saturday of each month. It was also held that the circulars which had been issued by the Corporation were applicable only to the ministerial staff in the offices of the petitioner- Corporation and not to the Plumbers, who were employed in the Maintenance Division, a part of the Civil Engineering Department. 5. Complaint (ULP) No.1207 of 1988 was allowed on 21st August, 1996. The Industrial Court took a contrary view than WP/5413/1996 4 that taken by the Labour Court and held that the respondent No.2-workman was entitled to paid holidays on the second and fourth Saturday of each month. It further concluded that there was an unfair labour practice committed by the petitioner-Corporation since no notice of change was issued under Section 9A of the I.D. Act before it decided not to implement the circular in respect of paid holidays on the second and fourth Saturday of each month. 6. Mr. Hegde, the learned Advocate for the petitioner- Corporation, has drawn my attention to the notification issued under Section 9B of the I.D. Act. The Government in exercise of its powers conferred under Section 9B has exempted the application of the provisions of Section 9A of the I.D. Act to the Mumbai City Road Transport Corporation, which was the predecessor in title of the petitioner- Corporation. This notification is still in force, according to Mr. Hegde. Mr. Vaidya, the learned Advocate appearing for respondent No.2, fairly concedes this position. However, he points out that this issue had not been raised either in the written statement filed before the Industrial Court or in the present Writ Petition. WP/5413/1996 5 7. On a perusal of the impugned order, it is obvious that the only reason that the Industrial Court has allowed the Complaint is that a notice under Section 9A of the I.D. Act was not issued by the petitioner-Corporation before introducing the change, namely of making the respondent No.2- workman attend his duties on the second and fourth Saturday of each month. In view of the notification dated 12th March, 1957, this finding of the Industrial Court is erroneous. Whether a notice of change was required in the circumstances of this case where the Corporation was exempted from the provisions of Section 9A is a question of law. Therefore it can be raised at this stage as well, when the arguments were heard. Furthermore, the Industrial Court has not considered the order passed by the Labour Court in Application (IDA) No. 457 of 1987, which findings were binding on the parties. 8. The impugned order dated 21st August, 1996, passed by the Industrial Court, Mumbai in Complaint (ULP) No.1207 of 1988 is, therefore, set aside. 9. The Writ Petition is allowed. 10. Rule made absolute. 11. No order as to costs.