1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.74 OF 2010 IN WRIT PETITION NO.1832 OF 2009 All India Siemens Employees Union .. Appellant (Orig.Respondent) Versus Siemens Limited .. Respondent (Original Petitioner) Mr.R.S.Shekhawat for appellant Mr.J.P.Cama, Senior Advocate with S.K.Talsania, Senior Advocate with V.P.Sawant and Raja Gawade for respondent. CORAM : ANIL R. DAVE C.J & S.C.DHARMADHIKARI, J. Reserved on : 6th April 2010. Pronounced on : April 2010. ORAL ORDER:- (Per Dharmadhikari, J). 1] This is an Appeal impugning an order of the learned Single Judge of this Court dated 15th/ 16th October 2009 in a writ petition under Article 226 of the Constitution of India, which was filed by the 2 Respondent before us. The Respondent in that petition impugned an interim order of the Industrial Court dated 31st August 2009 in Complaint (ULP) No.375 of 2009. That was a complaint instituted by the appellant before us, alleging unfair labour practice on the part of respondents and particularly those falling under Item Nos. 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Union and (Prevention of Unfair Labor Practices) Act, 1979. (for short “the Act”). 2] Upon the complaint being instituted by the appellant before us, they applied for interim reliefs therein. The learned Member, Industrial Court, Mumbai granted interim reliefs and directed the respondent before us to continue the transport system as agreed between parties as per the MOU dated 5th December 2008. The direction was to continue this transport system till 31st March 2010. 3] Aggrieved by this interim order and direction, respondent employer filed the aforementioned writ petition in this Court. The petition was heard finally by consent at the stage of admission and it 3 being allowed, so also the interim order quashed and set aside, that the appellant Union is before us. 4] It is contended by the learned Counsel appearing for the appellant that the learned Judge ought to have appreciated that the appellant and respondent had executed a Transport Rationalisation Agreement for employees at Kalwa and Worli which stipulated that the appellant Union will be solely responsible for the planning, organisation and implementation and day to day affairs of the transport system, including hiring of buses, dealing with contractors, deciding routes, bus stops, starting points, timings etc., including changes, if any and handling of complaints/ suggestions from employees. This agreement envisages limited participation or involvement of the company and that is to the extent of subsidising transport expenses by making payment as agreed in clauses 3 and 4. It is contended that if the agreement is perused, the same grants exclusive rights to the Union to operate and manage the transport system. Further, right of company to increase employees contribution in consultation with the Union has been preserved 4 thereunder. It is then contended that on 17th March 1997, an attempt was made by the company to centralise office activities at Kharghar from present locations and it was stated in the file note that the Union will undertake running and administration of canteen and transport system as has been presently handled by them for head office and Mumbai office. However, this file note cannot be treated as an agreement. Our attention was invited to a further document viz., a letter from the respondents dated 25th June 2009 wherein it was stated that there were certain discussions on the subject of taking over of transport and new office time at Worli. However, it is contended that on a complete reading of this document/ letter it is evident that the Union had not agreed to the steps suggested therein. It is contended that the foot note on this document is clear. Therefore, the employer/ management could not have renewed the transport facility unilaterally. It is in such circumstances that the Industrial court held that any alterations or change in the existing transport system can be effected only after compliance with the provisions of Industrial Disputes Act, 1947 and particularly section 9A thereof. In these circumstances, the attempt by the employer to hire 5 Buses on its own and foist an arrangement is contrary to the settlement arrived at and operational. Therefore, a prima facie case of unfair labour practice has been made out and the Industrial court rightly granted the interim order and direction. It is urged that the order passed by the Industrial Court was interim and the complaint was pending. If the learned Single Judge was of the opinion that some prejudice is caused to the management and/or employer, direction to expedite the hearing of complaint could have been issued but certainly, this was not a fit case for interference with the prima facie conclusion of the industrial court and allowing the writ petition. The learned Single Judge was in complete error in brushing aside and ignoring the prima facie conclusions and allowing the subject writ petition of the management – respondent. For all these reasons, the order of the learned Single Judge be set aside. 5] On the other hand, Mr.Cama, learned Senior Counsel appearing for the Respondent supported the impugned order and invited our attention to the letter dated 14th May 2009. Mr.Cama submits that it was the function of the management of running transport facility and for 6 convenience sake Union was allowed to operate it. Mr. Cama submits that the complaint before the Court below was filed by only 19 persons who can be categorised as “workmen”. There are 1057 officers involved. Mr.Cama submits that the complaint itself was misconceived because there is no question of such facility being a service condition. The management only facilitated the employees by providing transport but such a facility can be taken away by an agreement and, therefore, there is no question of mandate of section 9A of the I.D.Act being breached. In any event, that provision must be seen along with a schedule wherein such requirement of notice is stipulated. Such subject is not contemplated therein. 6] Therefore, Mr.Cama submits that the order of the learned Single Judge be upheld and the appeal be dismissed. 7] With the assistance of the learned Counsel appearing for parties, we have perused the relevant material and particularly the complaint before the Industrial Court, its interim order and some documents. We 7 have perused the order of the learned Single Judge so also the statutory provisions in the field. We are of the opinion that the order of the learned Single Judge suffers from no infirmity or error calling for our interference. 8] The reasons for our conclusion are that the Industrial Court proceeded on a misreading of the complaint. The complaint essentially projected the grievance that the agreement/ settlement dated 20th September 1983 was a supplementary settlement whereunder it was agreed that the Union will be solely responsible for planning, organisation, implementation and day to day administration of the transport system. According to the Union – complainant all facets of the transport system are included and it was thus the Union function. Parties agreed to even fixing the routes, boarding and alighting places, charges etc. and minutes of meetings are referred to in the complaint. The Union has engaged 11 bus contractors and about 25 buses were provided. The transport facility was maintained to the satisfaction of the concerned employees. However, despite the arrangement arrived, the respondent 8 management, malafide and with ulterior motive took over the transport system. This is only to keep the contractors under pressure and prevent the union from operating transport system. The circular and the proposed action discontinuing the existing contractors was referred to and it was urged that this is an unfair labour practice because the changes are effected contrary to section 9A of the I.D.Act. 9] The respondent pointed out that there is no question of any unfair labour practice because the Union had agreed that the management will take over running of the transport for Worli and Kharghar with effect from 1st January 2007. It was pointed out as to how the circular came to be issued. The Industrial Court held that the right of respondent management to take over the transport system or effect changes therein is not disputed but it ought to have been done by the management after the cut off date fixed in the settlement. The cut off date not being followed and the earlier system being in operation from 1983, then, it was necessary for the respondents to follow the provisions of section 9A of the I.D.Act before effecting changes in the transport system. This is 9 the only basis upon which the interim order came to be passed in favour of the Union. 10] The learned Judge on perusal of all settlement and relevant correspondence concluded that the findings of the Industrial Court even at this prima facie stage are untenable in law. The Industrial Court completely misdirected itself and ignored the material brought on record by the Union and the respondent – management. The conclusions drawn by the learned Single Judge in paras 23 and 24 of the impugned order viz., that the Union cannot be heard to say that it has a right to run transport system nor can they insist that certain contractors alone be engaged by the company is unassailable and cannot be termed as erroneous or perverse in any manner. In fact, on materials produced, the learned Judge concluded that the management is introducing new buses so as to enable their staff to travel in comfort. Their service conditions are not in any manner affected by taking over the transport system. There is no adverse effect on either the Union or the workmen. There is no violation of the settlement or agreement because the transport system 10 was only a facility and nothing more. Even this facility is not being withdrawn but it is being made operational now by the management. This prima facie conclusion of the learned Judge is based on the documents produced by the Appellants. It is not based on anything else but on the reading of the complaint and considering the contents of the same and its annexures. The learned Judge corrected an apparent error in exercise of his writ jurisdiction. 11] In this view of the matter we do not find that this is a fit case for our interference in the jurisdiction conferred by clause 15 of the Letters Patent. More so, when the conclusion drawn by the learned Single Judge is in consonance with law and based on the materials produced at the prima facie stage. In the result, appeal fails and the same is dismissed. No costs. (CHIEF JUSTICE) (S.C.DHARMADHIKARI, J)