WP/2413/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2413 OF 2010 Force Motors Ltd., Pune ... Petitioner V/s. Shantilal Hukumchand Sancheti & Anr. ... Respondents Mr. S.K. Talsania, Sr. Counsel, with Mr. Vishal Talsania and Ms. Pallavi Dedhia i/b. Sanjay Udeshi & Co. for the Petitioner. Mrs. Neeta P. Karnik for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 20 TH DECEMBER, 2010. PRONOUNCED ON: 8 TH MARCH, 2011. JUDGMENT : 1. Rule. Rule made returnable forthwith, by consent. 2. Once again the vexed question as to what could be considered as an incidental issue in an application under Section 33C(2) of the Industrial Disputes Act, 1947, (for short “the I.D. Act”), arises for determination in the present Petition. 3. The first respondent, (hereinafter referred to as “the workman”), was employed with the petitioner, (hereinafter referred to as “the Company”), from 5th October, 1970. He was recruited as a “Junior Clerk” in the Traffic Department. He was later re-designated as a “Senior Assistant” on 1st November, 1979. Thereafter, WP/2413/2010 2 he was transferred to the Stores Department on 14th January, 1980. The Company dismissed the workman on 7th August, 1982 for having committed gross misconduct of insubordination and disobedience. Aggrieved by that order, the workman preferred Complaint (ULP) No.51 of 1988, which was allowed partly by the Labour Court, Pune. The Company was directed to reinstate the workman with continuity of service and to pay him 50% of his back-wages by the order of the Labour Court dated 27th September, 1988. Both the workman as well as the Company preferred Revision Application before the Industrial Court, Pune. By an order dated 1st March, 1993, the Industrial Court allowed the Revision Application of the workman and granted him full back-wages. The Revision Application of the Company was dismissed. The Company complied with the order of the Industrial Court by reinstating the workman w.e.f. 23rd April, 1993. An amount of `2,93,984.34 was paid to the workman on 14th May, 1993 as that was the amount, according to the Company, which he was entitled to as back-wages. 4. The workman filed Miscellaneous Application (ULP) No.12 of 1993 before the Labour Court under Section 50 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”), claiming that he was entitled to the benefits of Settlements which were signed by the Company with the Union representing the employees while he was out of service. These Settlements were signed on 24th January, 1985, 22nd June, 1988 and 30th April, 1993. The workman claimed an amount of WP/2413/2010 3 `2,41,096/-. Criminal Complaint (ULP) No.22 of 1993 was also filed by the workman under Section 48 of the MRTU & PULP Act. The process issued by the Labour Court against the Managing Director of the Company was quashed by the Industrial Court. Criminal Writ Petition No.1066 of 1997 filed by the workman against the order of the Industrial Court was dismissed on 30th July, 2001. Soon thereafter on 3rd September, 2001, the Miscellaneous Application filed under Section 50 of the MRTU & PULP Act was also dismissed by the Labour Court by concluding that it did not have the jurisdiction to decide the Miscellaneous Application. The Industrial Court set aside this order of the Labour Court and remanded the application again to the Labour Court. The application was dismissed once again which lead to another Revision Application being filed by the workman. The Industrial Court dismissed that application. No further proceedings have been taken up by the workman against that order of the Industrial Court passed on 5th October, 2002 in Revision Application (ULP) No.81 of 2000. 5. While these proceedings under the MRTU & PULP Act were pending, the workman filed an application under Section 33C(2) of the I.D. Act, being Application (IDA) No.75 of 2000. The workman claimed an amount of `2,45,345.55 as dues payable to him under the Settlement dated 30th April, 1993. He also claimed interest @ 18% p.a. on that amount. According to the workman, after he was reinstated in service on 24th April, 1993, the Company did not pay WP/2413/2010 4 the benefits of the aforesaid Settlement. 6. The workman filed another application, being Application (IDA) No.25 of 2003, under Section 33C(2) of the I.D. Act claiming `2,41,096/- together with interest @ 18% p.a. In this application, he sought dues payable to him under the Settlement of 1984, 1988 and 1993 which had not been extended to him after he was reinstated in service. Thus, the period for which the workman claimed difference in wages in both the applications taken together was from 1982 till 1993. 7. The workman and five other workmen filed Complaint (ULP) No.377 of 1977 before the Industrial Court under Item 9 of Schedule IV of the MRTU & PULP Act. It was alleged that the Company had committed an unfair labour practice by not extending the benefits of certain Settlements to them. The Industrial Court allowed the complaint by an order dated 7th September, 1998. Aggrieved by this decision, the Company preferred Writ Petition No.6605 of 1998 which is pending in this Court. The order of the Industrial Court has been stayed by this Court. 8. Both the applications filed under Section 33C(2) of the I.D. Act, i.e. Application (ULP) Nos.75 of 2000 as well as 25 of 2003, were heard together by the Labour Court on an application made by the workman. In its written statement, the Company contended that the workman was not given the benefits WP/2413/2010 5 of the Settlement dated 30th April, 1993 while paying him his back-wages. The Company pleaded that this was because the Settlement of 30th April, 1993 was binding only on such workmen who had submitted an undertaking in writing, accepting the terms and conditions of the Settlement. As the workman had not submitted any such undertaking, as required under the Settlement, he was denied the benefits of the Settlement of 30th April, 1993. It was also pleaded that the application was barred under Section 59 of the MRTU & PULP Act since he had sought the same relief before the Industrial Court. 9. Evidence was led by the workman. He filed his affidavit in lieu of examination-in-chief in which he has stated that he had sent several letters and had orally requested officials of the Company to permit him to sign the undertaking in order to avail of the benefits of the Settlement. However, the Company had refused to accept his request. In his cross-examination, when asked whether he had furnished the undertaking accepting the conditions in the Settlements of 1985, 1988 and 1993, the workman answered that the Company had not supplied the Form of Undertaking to him. He further stated that he had written to the Company seeking the Undertaking Form. 10. The witness of the Company has stated in his affidavit filed in lieu of examination-in-chief that the workman had refused to submit any undertaking accepting the terms and conditions of the Settlement dated 30th April, 1993 and it was for this reason that the benefits of this Settlement were not extended to him. WP/2413/2010 6 In his cross-examination, the witness has denied the suggestion that the Company had not furnished Annexure-I of the Settlement to the workman despite his request. Annexure-I was the Form of Undertaking. 11. The Labour Court by its order dated 27th April, 2009 passed in Application (IDA) No.25 of 2003 directed the Company to pay an amount of `2,08,555/- with interest @ 8% p.a. from the date of the application i.e. from 13th March, 2003 till realization of the entire amount. 12. The petitioner then preferred Miscellaneous Application No.3 of 2009 for review of the order passed in Application (IDA) No.25 of 2003. That application was dismissed by the Labour Court on 10th February, 2010 on the ground that the review was not maintainable. 13. Besides the submissions that he had raised in Writ Petition No.2397 of 2010, Mr. Talsania, the learned Counsel for the Company, has submitted that the workman had filed an application under Section 50 of the MRTU & PULP Act claiming the amounts payable to him. He submitted that in view of the provisions of Section 59 of the MRTU & PULP Act, the application under Section 33C(2) of the I.D. Act was not maintainable. Mr. Talsania further submitted that the Labour Court has erred in concluding that the application under Section 50 of the MRTU & PULP Act was filed for a different period and that the period covered from the WP/2413/2010 7 application under Section 33C(2) of the I.D. Act was not hit by the bar of Section 59 of the MRTU & PULP Act. 14. Mrs. Karnik, the learned Advocate appearing for respondent No.1, supported the judgement of the Labour Court by reiterating the submissions that she had advanced in Writ Petition No.2397 of 2010. She added that the amount claimed under the application filed under Section 50 of the MRTU & PULP Act was not for the same period as the amount claimed under the present application is under Section 33C of the I.D. Act. 15. The only issue which arises for me to determine in the present Petition is whether the bar of Section 59 of the MRTU & PULP Act will operate in the present case. Complaint (ULP) No.51 of 1988, which was filed before the Labour Court by the workman, was decided on 27th September, 1988. The workman was entitled to reinstatement with continuity of service and 50% of the back-wages. The Review Applications preferred by, both, the Company and the workman were disposed of by a common order on 1st March, 1993. The workman was granted full back- wages. Accordingly, the Company reinstated the workman on 23rd April, 1993. The workman had preferred Miscellaneous Application (ULP) No.12 of 1993 before the Labour Court under Section 50 of the MRTU & PULP Act claiming an amount of `2,41,096/- as benefits payable to him under the settlements arrived at between the Company and the Union representing the workers. On 12th WP/2413/2010 8 September, 2001, the Labour Court rejected the application on the ground that it did not have jurisdiction to entertain an application filed under Section 50 of the MRTU & PULP Act. The Revision Application preferred by the workman was partly allowed and the matter was remanded to the Labour Court to decide it afresh. The Labour Court, on remand, again held that it did not have jurisdiction to decide the issue. A Revision Application preferred from that order of the Labour Court on 18th April, 2002, which was dismissed on 5th October, 2002. Admittedly, the order passed in the Revision Application has not been challenged by the petitioner. It is now well settled by the judgement of the Full Bench in the case of C.S. Dixit vs. Bajaj Tempo Ltd., Pune, reported in 2000 II CLR 719, that the bar under Section 59 of the MRTU & PULP Act will not operate where an application filed under the MRTU & PULP Act was dismissed as not maintainable. The Full Bench has observed thus : “16. In the instant case, the amendment was disallowed and therefore it cannot be said that the matter was entertained by the Industrial Court under the said Act. Likewise the bar of limitation having the effect of shutting out the remedy even if the question is decided at the end of trial, in our opinion, would have the effect of shutting the doors of the Court, on account of non-maintainability which is a direct result of the remedy of approaching the Industrial Court under the said Act being barred because of the statute of limitation. As has been noted so far in the various decisions, the provision of Section 59 is based on the salutary principle of compelling a party to stick to the remedy that he had taken recourse to. Obviously, when the remedy itself is barred, it cannot be said that he had taken recourse to the very remedy which is barred. WP/2413/2010 9 17. Likewise, on account of the subsequent development, if there is a new cause of action, as noted above, in the instant case, that matter, unless allowed to be raised before the Industrial Court under the said Act, cannot be said to be brought before the Industrial Court seeking to remedy the grievance, as the amendment itself was disallowed. Obviously, therefore, it was not possible to say that the remedy was resorted to. 18. Going back to the said four segments of stages, as set out in Mukhtyar Ahmed’s case, lodging of a complaint unless numbered and order having been passed cannot be said to have been entertained and then only, in our opinion, it can be said that the remedy is taken recourse to. However, if the statute of limitation is pleaded, everything will be wiped out, and the petitioner, who is hit by the statute of limitation, shall have to be treated as a person being refused the entry even though the point as to limitation may have been decided at the end of trial. In that event, of course, even if all four stages have gone through, the bar of Section 59 of the said Act cannot be invoked. 19. In our opinion, there is no question of bar of Section 59 being invoked when the matter sought to be agitated is based on a new cause of action. As the matter was pending before the Industrial Court under the said Act, obviously it was not dealing with the said new cause of action. 20. In our opinion, therefore, mere filing of a complaint under the said Act without anything done in the matter will not attract the bar of Section 59. If the statute of limitation is successfully invoked in a matter before the Industrial Court under the said Act, the bar will not apply. About the new cause of action, also as noted above, there is no question of invoking the bar at all. 21. We are further of the opinion that if before any effective steps are taken by the Industrial Court under the said Act when the matter is withdrawn then also the bar would not apply. As to what could be the effective steps, the question is to be decided as to the facts and circumstances of the WP/2413/2010 10 case. It is obviously not possible to enumerate all possible set of circumstances, which in a given case, will induce us to conclude that the effective steps are not taken. At the same time, if effective steps are taken, bar under Section 59 would certainly apply. No party can be permitted to either shop the forum or avoid outcome of its own action on the ground of exigency of convenience.” 16. Similarly, in the case of Kanak Industries vs. General Labour Union (Red Flag) & Anr., reported in 2007 (5) Bom.C.R. 286, the Division Bench of this Court has observed that the provisions of Section 59 evince an intention of the Legislature to ensure that a multiplicity of the proceedings should not be adopted with respect to the same matter, once a duly constituted proceeding has been instituted under the MRTU & PULP Act. The Division Bench after considering the judgement of the Full Bench observed thus : “14. ........................................................................................... The Full Bench while explaining the parameters of section 59 held that the bar contained therein will not be attracted in certain cases. Firstly, when the remedy of a complaint of unfair labour practices itself is barred, it cannot be said that the litigant has taken recourse to the very remedy which is barred. Secondly, if on account of subsequent developments, a new cause of action arises, the provisions of section 59 would not bar a litigant from bringing a subsequent proceeding on the basis of a new cause of action. Thirdly, where a statute of limitation is pleaded in defence to the remedy adopted by the litigant and the plea of limitation is allowed, the dismissal of an earlier complaint of unfair labour practices under the MRTU & PULP Act, 1971 will not operate to bar the maintainability of a reference under the Industrial Disputes Act, 1947.” WP/2413/2010 11 17. In my view, since the Labour Court and the Industrial Court had dismissed the application filed under Section 50 of the MRTU & PULP Act, as not maintainable, the submission of Mr. Talsania that the Application (IDA) No.25 of 2003 filed under Section 33C(2) of the I.D. Act is not barred under Section 59 of the MRTU & PULP Act. 18. In the present case, the settlement under which the workman claimed the benefits did not require the workman to furnish any undertaking to the Company and, therefore, the submissions of Mr. Talsania regarding entitlement of the workman, which have been made in Writ Petition No.2397 of 2010, have no relevance. In the present case the only issue appears to be that the Company has contended, which is different from the contentions raised in the Writ Petition No. 2397 of 2010, regarding the maintainability of the application. Since I have already answered this issue, the application filed under Section 33C(2) of the I.D. Act claiming benefits under the settlement was maintainable. The benefits of the settlement dated 30th April, 1993 ought to have been extended to the workman. Accordingly, the workman is entitled to the amount awarded by the Labour Court, Pune. 19. The Writ Petition is dismissed. 20. Rule discharged. No order as to costs.