IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 9002 of 1999 Between: Jubilee Hills International Centre Employees Union, Rep. by its Secretary, M.C.Hanumanthu, S/o. M. Anjaneyulu, R/o. H.No.8-2- 269/19/381/B, Road No.2, Banjara Hills, Hyderabad-34. ..... PETITIONER AND 1 Assistant Commissioner of Labour, Circle III, Hyderabad, T.Anjaiah Bhavan, RTC X Road, Hyderabad. 2 Commissioner of Labour, Andhra Pradesh T.Anjaiah Bhavan, RTC X Road, Hyderabad. 3 The Jubilee Hills International Centre, Rep. by its Secretary Road No.14, Jubilee Hills, Hyderabad-33. 4 Government of Andhra Pradesh Rep. by Secretary Deptt. of Labour, Secretariat, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ in the nature of a Writ of Mandamus or other appropriate writ or direction to the first, second and fourth Respondents to prosecute the Third Respondent for unfair labour practices in accordance with the notice No.D/152/98 dated 1-6-1998 issued by the First Respondent and pass such other order or orders as this Hon'ble Court may deem fit and proper. Counsel for the Petitioner:MR.K.BALAGOPAL Counsel for the Respondents 1,2 and 4: GP FOR LABOUR Counsel for Respondent No.3: SRI M.RADHAKRISHNA MURTHY. The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.9002 of 1999 ORDER: This writ petition is filed by a Trade Union, registered under the Trade Unions Act, seeking a direction to respondents 1,2 and 4 to prosecute respondent No.3 for unfair labour practice in accordance with their notice dated 01.06.1998. Facts, in brief, are that the petitioner-Union had espoused the cause of two of its members Sri M.C.Hanumanthu and Sri M.V.B.G.S.V.Prasad, who were overlooked for promotion, and instead their juniors Sri B.Janardhan Goud and Sri D.Srinivasa Rao were promoted, though they had joined service later. The petitioner sent a representation to the first respondent on 06.03.1998 alleging that the management’s act amounted to unfair labour practice under clause 4(d) and 4(e) of the fifth Schedule of the Industrial Disputes Act, and that such unfair labour practice was punishable under Section 25-U of the Industrial Disputes Act. The Assistant Commissioner of Labour is said to have called for particulars and thereafter to have issued a notice to the management on 01.06.1998 directing them to review their decision regarding promotions and to correct the anomaly in the matter of Dearness Allowance. The first respondent further observed that the behaviour of the management amounted to unfair labour practice for which the management was liable to be punished. On the ground that neither the management had set right the situation nor had the first respondent initiated steps to prosecute them under Section 25-U of the Industrial Disputes Act, the petitioner-Union invoked the jurisdiction of this Court under Article 226 of the Constitution of India. In the affidavit filed on behalf of the third respondent on 24.03.2008, it is stated that a settlement, under Section 12(3) of the Industrial Disputes Act (hereinafter referred to as ‘the I.D.Act’), was entered into between the third respondent and the petitioner-Union on 18.09.1999 in the presence of the Conciliation Officer and that the said settlement required the third respondent to drop disciplinary proceedings against Sri M.C.Hanumanthu and to promote him with immediate effect, that the management had also agreed to consider the case of Sri M.V.B.G.S.V.Prasad for promotion with retrospective effect i.e., from the date on which his juniors were promoted. Pursuant thereto, the third respondent is said to have promoted both Sri M.C.Hanumanthu and Sri M.V.B.G.S.V.Prasad with effect from 01.01.1998 and, as a result, they were placed above Sri B.Janardhan Goud and Sri D.Srinivasa Rao who had been promoted on 14.02.1998. In the affidavit dated 24.03.2008, it is further stated that Sri M.C.Hanumanthu died later and that Sri M.V.B.G.S.V.Prasad was promoted as Senior Assistant with effect from 01.01.1998 and was also given another promotion to the post of Junior Manager (Accounts) from the post of Senior Assistant (Accounts), vide proceedings dated 12.08.2007. In the counter affidavit filed on behalf of the first respondent, it is stated that several joint meetings were held and that, eventually, the then Assistant Commissioner of Labour, on 23.10.2000, had endorsed on the file that since the matter was settled amicably between the parties, the file was closed. The first respondent would state that prosecution had nothing to do with settlement of industrial disputes and, since the issue did not warrant prosecution, no further action was taken by the first respondent to prosecute the third respondent. Sri K.Balagopal, learned counsel for the petitioner, would contend that, it is only pursuant to the petitioner-Union having initiated steps to have the third respondent prosecuted for unfair labour practice, and on the first respondent’s failure to forward his recommendations to the Commissioner of Labour, had they invoked the jurisdiction of this Court which resulted in the management (third respondent) agreeing to resolve the dispute amicably and in having entered into a settlement under Section 12(3) of the I.D.Act. Learned counsel would contend that the mere fact that the settlement was entered into, under Section 12(3) of the I.D.Act, later would not, as a matter of law, necessitate that, in all cases, the employer should not be prosecuted for unfair labour practice when the competent authority is satisfied, on the material placed before it, that the employer had, indeed, indulged in unfair labour practice. Learned counsel would submit that this Court should refrain from giving a clean chit to the third respondent-management and instead direct the first respondent to place the entire records before the second respondent who alone is competent to take a decision as to whether or not the third respondent-management should be prosecuted for unfair labour practice. Sri M.Radha Krishna Murthy, learned counsel for the third respondent, would submit that since the very same petitioner Union had entered into a settlement, under Section 12(3) of the I.D.Act, and the cause espoused by them had been addressed by the third respondent and both the employees, who were aggrieved by their not being promoted, were promoted retrospectively and placed above the other two candidates who had been promoted as Senior Assistants, forcing the 3rd respondent to undergo the ordeal of the prosecution was an unnecessary exercise. Learned counsel would further state that Sri M.C.Hanumanthu, who was the Secretary of the petitioner-Union at the time when the writ petition was filed, and who was also one of those two employees aggrieved by their not being promoted, is no more, and that this Court should give a quietus instead of directing the second respondent to take a decision whether or not the third respondent should be prosecuted. Events, subsequent to the filing of the writ petition, would show that the cause espoused by the Union has been addressed by the third respondent. While it is no doubt true that subsequent settlement, even if it be under Section 12(3) of the I.D. Act, would not, in all cases, absolve the employer of being proceeded against for unfair labour practice, it must also not be lost sight of that the remedy under Article 226 of the Constitution of India is discretionary and, save manifest injustice or larger public interest being adversely affected, this Court may not exercise its discretion. Since, in the present case, the grievance of the employees have been addressed, ends of justice would be met if the question, whether a subsequent settlement under Section 12(3) of the I.D.Act would automatically necessitate the employer not being prosecuted for unfair labour practice, is left open and this Court, in the facts and circumstances of the present case, refrains from exercising discretion under Article 226 of the Constitution of India in favour of the petitioner. The writ petition stands dismissed. However, in the circumstances, without costs. _______________________ (RAMESH RANGANATHAN,J) 26th March, 2008 v v To 1 Assistant Commissioner of Labour, Circle III, Hyderabad, T.Anjaiah Bhavan, RTC X Road, Hyderabad. 2 Commissioner of Labour, Andhra Pradesh T.Anjaiah Bhavan, RTC X Road, Hyderabad. 3 Secretary, The Jubilee Hills International Centre, Road No.14, Jubilee Hills, Hyderabad-33. 4 The Secretary, Government of Andhra Pradesh Rep. by Secretary Deptt. of Labour, Secretariat, Hyderabad. 5. Two CC copies to G.P. for Labour. 6. Two CD copies.