IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4206 OF 2009 Poona Employees Union ...Petitioner Vs. Force Motors Ltd. & Anr. ... Respondents --- Ms.Gayatri Singh and Ms. Bhavana Mhatre for Petitioner Mr.S.K. Talsania, Senior Counsel with Mr. Vishal Talsania and Mr. Mahesh Londhe i/b. Mr. Sanjay Udeshi for Respondents ---- CORAM: V.M. KANADE J. DATED 1ST JULY, 2009 P.C. 1. Heard the Counsel for the Petitioner and the Respondents . 2. By this petition, which is filed under Articles 226 and 227 of the Constitution of India, the Petitioner Union is challenging the order passed by the Industrial Court dated 28th April, 2006 whereby, the Industrial Court was pleased to grant order of injunction restraining the members of the Petitioner Union from holding agitations / dharnas within 100 ft. distance from the main gate as well as further restraining them from doing any act which would affect the normal working of the company. 3. Brief facts are that the Respondent Company filed complaint in the Industrial Court against the Petitioner Union under the M.R.T.U. & P.U.L.P. Act, 1971 for having committed unfair labour practices under Items 1,2(a), 2(b) and 5 of Schedule III of the said Act. The Industrial Court after perusing the evidence which was produced by both the parties, came to a conclusion that the Respondent Company had not established that the Union had committed unfair labour practices under Items 1,2(a) and 2(b) of the said Act. However, on the basis of the material produced on record, it held that the Petitioner Union had committed unfair labour practice under Item 5 of Schedule III of the said Act and passed the impugned order. 4. Shri Talsania, Senior Counsel appearing on behalf of the Respondents, at the outset, raised preliminary objection that there is a gross delay in filing the petition since the impugned order was passed on 28th April, 2006 and the present petition has been filed after a lapse of 3 years as also sufficient cause has not been given by the Petitioner herein for condonation of delay in filing the writ petition in this Court. 5. Ms. Gayatri Singh, the learned Counsel appearing on behalf of the Petitioner submitted that the Industrial Court had erred in passing the impugned order, firstly on the ground that there is no material produced by the company which shows that the Petitioner had committed unfair labour practice under Item 5. She submitted that the finding of the Industrial Court on this point was perverse since the Industrial Court had on the basis of conjectures and surmises arrived at the conclusion that the Petitioner Union had committed unfair labour practice. She submitted that the Industrial Court also had relied on the newspaper report for the said purpose, but, there was no concrete material on record to prove the said fact. She further submitted that criminal complaints which were filed by the police, were filed for violating the provisions of sections 143 and 148 of the Indian Penal Code. She submitted that the Industrial Court had erred in relying on the said criminal complaints. She also invited my attention to the evidence of the witnesses examined by the company. She submitted that nowhere in the said evidence the witnesses have stated that the Union held violent demonstrations or assaulted any of the employees of the company or had pressurized the members of the recognised union to join the Petitioner Union. She submitted that the members of the Union have a fundamental right to hold peaceful demonstration and to agitate their rights in a peaceful manner. She submitted that by passing the said impugned order, there was a clear denial of the fundamental rights to the Petitioner Union to hold peaceful demonstration. She relied on a judgment of this Court in the case of Kamgar Sabha and others vs. Hindustan Ciba-geigy Ltd. reported in MANU/MH/0386/1994 in Appeal From Order No. 26 of 1994. She also relied on a judgment of the Learned Single Judge of this Court in the case of Federation of Indian Bank Employees Union and Anr. Reported in (1982) I LLJ 123 Madras High Court. She, however,clearly conceded that she was not opposing the second part of the impugned order viz. the order restraining the Petitioner from doing any act which would affect the normal working of the company. 6. Shri Talsania, Senior Counsel appearing on behalf of the Respondents submitted that the Industrial Court had recorded a finding on the issue and, therefore, no case has been made out to interfere in the said finding recorded by the Industrial Court. He further submitted that the Petitioner-Union and its members had violated the orders passed by the Industrial Court from time to time. Therefore, they are not entitled to seek modification of the said order. He further submitted that the interim order was passed in the year 2004 and the order was in operation for almost a period of 5 years and, thereafter, belatedly this petition has been filed, because, the criminal complaints which were filed by the Respondents against the Petitioner-Union were being heard by the learned Magistrate. He invited my attention to various complaints which were filed against the Union, which are annexed to the affidavit in reply of the Respondents. At this juncture, the learned Counsel for the Petitioner Ms. Gayatri Singh submitted that these complaints, which are annexed to the affidavit in reply, were not produced before the Industrial Court and for the first time these copies are annexed to the affidavit in reply. She submitted that no reliance could be placed by the Respondent Company on these complaints since no opportunity was given to the Petitioner-Union to give its reply before the Industrial Court. 7. Shri Talsania, learned Senior Counsel appearing on behalf of the Respondents, therefore, submitted that this is a fit case where the petition which was filed under Articles 226 and 227 of the Constitution of India is liable to be dismissed in limini. 8. In the present case, it is an admitted position that the Petitioner-Union is an unrecognized Union. The grievance of the Company in the complaint is that the Petitioner Union is resorting to campaign to increase its members / supporters and, therefore, resorted to non-cooperation and also resorted to go-slow tactics. In the complaint, it was alleged that charter of demands was given by the Petitioner Union on 29.12.2003. However, the demands were squarely unreasonable. The Respondent Company had informed the Petitioner-Union that since there was a recognized union which was in existence, the company was not in a position to entertain the said charter of demands, though it was made clear that it was not opposed to any Petitioner-Union. In the complaint, an apprehension was expressed by the Respondent Company that in view of the notice given by the Petitioner-Union of holding a dharna in front gate of the company, the intention of the Union was to prevent free movement of men, material and vehicles to and fro from the premises of the company and an apprehension was also expressed that the Petitioner Union wanted to instigate the other workers to participate in the dharna and resort to a strike. The apprehension on the part of the Respondent Company was that all these activities were intended to coerce the management into accepting the charter of demands and start negotiations with the Petitioner-Union. 9. It is a well settled position in law that there cannot be straight jacket formula which can be taken into consideration while granting or refusing relief claimed under the said Item 5 of Schedule III. It has been held in various judgments that each case would depend on its facts and circumstances. That being the position. The Industrial Court, therefore, ought to have taken into consideration the circumstances and situation which is in existence at the relevant time when a complaint of unfair labour practice under Item 5 is lodged by the company against its Union. The Industrial Court, under these circumstances, after going through the material which was placed before it, came to the conclusion that there was sufficient material on record which indicates that prima facie the Respondent Company had established that they had genuine apprehension that the Petitioner Union would resort to a campaign of non cooperation and unfair labour practices and resort to coercive measures. The Industrial Court had, therefore, cited various instances and on the basis of which it came to the conclusion that the Respondent Company has established that the Petitioner Union had committed unfair labour practices. It is true that some of the instances which were mentioned by themselves may not amount to unfair labour practices e.g. directing members of the union to wear red bands along with red badges in the work premises. However, it has to be seen whether the cumulative effect of various instances on which reliance placed by the company would be sufficient for coming to the conclusion that the Petitioner Union had committed unfair labour practices under Item 5. On perusal of the material produced by the Respondent Company, in my view, it is sufficient for coming to the said conclusion. The Industrial Court, therefore, in my view, had rightly come to the said conclusion and had passed an order restraining the members of the Petitioner-Union from holding agitations within 100 ft. distances from the main gate of the factory premises. No case is, therefore, in my view, made out by the Petitioner to interfere with the order passed by the Industrial Court while exercising writ jurisdiction of this Court. 10. It is no doubt true that there is a gross delay on the part of the Petitioner-Union in filing this petition after lapse of almost 3 years. No specific period of limitation is prescribed for filing a writ petition in the Court. In the present Case, in my view, the explanation given in paragraph 9 of the petition has to be accepted as sufficient cause shown by the Petitioner-Union to file the petition after lapse of 3 years. The objection, therefore, raised by the learned Senior Counsel for the Respondents of gross delay in filing the petition cannot be accepted. 11. Under these circumstances, there is no merit in the submission made by the learned Counsel for the Petitioner. Writ Petition is, accordingly, dismissed. V.M. KANADE J.