Case: Hindustan Lever Ltd Vs. Ashok Vishnu Kate

as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Item 1. In fact, whether such an alleged practice should be based on repetitive acts or a single act is strictly not relevant for deciding the question whether an attempt towards commission of such a practice, when the final order of dismissal or discharge has not been passed, can be made subject-matter of the complaint under the Maharashtra Act. 51. Similarly, contention found in paragraph IV (ii) that the words `` discharge or dismissal mean the final order of sending away or removing a person also cannot be of any assistance to the appellant for the simple reason that we are not concerned with the connotation of the words ``dismiss or discharge. The question is whether an attempt towards ultimate dismissal or discharge by way of taking a firm step towards it can be the subject-matter of a complaint under the Maharashtra Act. For deciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be. 52. The submission made in paragraph V(i) on the construction of the words ``is engaging in as found in Section 28 also cannot be countenanced for the simple reason that even in the said paragraph, it is mentioned that some of the unfair labour practices may be of continuing nature and for that purpose emphasis is placed on some of the items mentioned in Schedules II, III and IV. However, even from the scheme of the schedules it becomes clear that any present continuous act of engaging in the alleged unfair labour practice would be covered by the term ``is engaging in. We have already discussed in detail the correct connotation of these words in the earlier part of this judgment. For the reasons recorded by us therein, this submission is found to be devoid of any substance. In sub-paragraph (iii) of paragraph V, it is submitted that aim of prevention is achieved by : (a) directing the employer as an interim measure to withdraw the practice complained of and if the complaint is proved, in the final order of quashing the order of dismissal, and also (b) by prescribing a penalty which penalty is to act as a deterrent and prevent the commission of unfair labour practice. We fail to appreciate how this will affect the correct connotation of the word ``prevention. If the alleged unfair labour practice of discharge or dismissal of an employee is to be prevented, then as discussed earlier, it must necessarily contemplate an intervention of the competent Labour Court at a stage prior to the actual commission of such unfair labour practice. 53. Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]If it is to be prevented, it has to be prevented from taking effect or getting completed. Therefore, the intervention of the Labour Court can be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by way of victimisation has not resulted into its culmination but it is in pipeline or process. Under the standing orders governing the concerned industries, before an employee can be discharged or dismissed on the ground of any misconduct, departmental enquiry has to be held. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a charge sheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. It can then be said that the process of alleged unfair labour practice on the part of the employer to discharge or dismiss an employee on ground (a) mentioned in Item 1 of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee can make out a strong prima facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In this connection, it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item 1 of schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on such grounds with a view to discharge or dismiss an employee is considered by the Actto be an unfair labour practice on the part of the employer.19. The Division Bench of the High Court for coming to its conclusion has heavily relied upon the words ``to discharge or dismiss employees as found in Item 1 of Schedule IV. We find that the term ``to discharge or dismiss does indicate even attempted action towards such discharge or dismissal. In this connection, we may profitably refer to the meaning of the term ``to as found in various dictionaries as the said term is not defined by the Maharashtrais not possible to accept the contention of the learned counsel for the appellant that discharge or dismissal of any employee would only mean the confirmed act of discharge or dismissal on any of these grounds and not penultimate step taken by the employer concerned in that direction on that ground. Therefore, on the express language of Item 1 of Schedule IV the general unfair labour practice on the part of the employer ``to discharge or dismiss an employee on any of the listed grounds would include both the final act of discharge or dismissal of employee on any of these grounds as well as any penultimate step taken towards that destination and object by starting the process of disciplinary enquiry on giving the chargesheet to the employee and/or suspending an employee pending or in contemplation of such enquiry and all further steps during such departmental enquiry about which a complaint can be made on permissibleit is obvious that at the stage when such a shockingly disproportionate punishment is given, this clause would certainly get attracted, but that does not mean that it could not be demonstrated even earlier, if there are facts available in a case, that for a trifle or mere minor or negligible misconduct, the employer proposes to discharge or dismiss theit is not as if and when such a grievance is made, the Labour Court cannot be approached for preventing such an unfair labour practice from getting culminated and that the workman is to wait till such shockingly disproportionate punishment actually comes to be imposed. Then there would be nothing left to be prevented. It would be like bolting the doors of the stable after the horses have fled. We, therefore, hold that on the express language of Item 1 of Schedule IV complaint can be filed for the alleged unfair labour practice which is in the offing and towards which a firm step is taken by the employer. It is in the light of the aforesaid scheme of Item 1 of Schedule IV that we have to turn to the remaining relevant sections of thethere is total embargo on the unions of the employees as well as the employees and also on the employer on engaging in any unfair labour practice. Once it is found that Item 1 of Schedule IV covers general unfair labour practices on the part of the employer consisting of not only final discharge or dismissal of employee on any of the grounds mentioned in Item 1 but also any action taken by initiating the process towards such ultimate discharge or dismissal of the employee, Section 27 of the Maharashtra Act gets attracted even at a prior stage when such unfair labour practice is sought to be resorted to by the employer by engaging himself in such an unfair labour practice. In other words, to take an illustration, if it is alleged in a given case that the employer seeks to discharge or dismissal an employee by way of victimisation and for that purpose he has initiated the process of departmental enquiry by issuing the chargesheet to the employee concerned, the employee concerned can legitimately urge that the employer is guilty of such unfair labour practice in which he seeks to engage himself and, therefore, the prohibition enshrined in Section 27 gets squarely attracted against him. It is not as if that in such a case the employer can be said to have engaged himself in my unfair labour practice of discharging or dismissing the employee by way of victimisation only after the ultimate stage is reached and the order of discharge or dismissal sees the light of the day, The prohibition against engagement in any unfair labour practice as mentioned in Section 27 will cover all stages from the beginning to the end, when the process which is initiated by the concerned employer or the union in connection with the alleged unfair labour practice starts and ultimately terminates.It becomes, therefore, obvious that if an employer is alleged to be engaged in discharging any employee then even before the actual order of discharge is passed he can be said to be engaged in such discharge if it is shown that an attempt is made towards such a discharge with an intention to ultimately discharge the employee.33. We may also refer to Section 28(3), which empowers the concerned Court on receipt of the complaint under Section 28(1) to cause an investigation into the said complaint to be made by the investigating officer, if thought necessary and direct that a report in the matter may be submitted by him to the Court, within the period specified in the direction. Therefore, it is not as if that the moment a complaint is filed the Labour Court can mechanically pass an order intercepting the proceedings of any departmental enquiry. It can in appropriate cases even cause a preliminary enquiry about the correctness of the allegations in the complaint through the investigatingwe have already seen earlier, Item 1 of Schedule IV would cover in the sweep of general unfair labour practice on the part of the employer even the initiation of proceedings or taking any other firm step like suspension, towards discharge or dismissal of the employee concerned, which can be challenged on the grounds mentioned in Item 1 of Schedule IV . Such initiation of proceedings or firm steps themselves would be the occurrence of the alleged unfair labour practices and would give a cause of action to the complainant to file the complaint under Section 28(1) within the period of limitation as laid down therein. It is not as if that the occurrence of unfair labour practice can be only of one type, that is, the final order of discharge or dismissal as assumed by the learned counsel for theit cannot be said that the Division Bench of the Bombay High Court was not right when it took the view that the act of engaging in any unfair labour practice by itself is not an offence under the Maharashtra Act while such commission of unfair labour practice itself is an offence under the Industrial Disputes Act. However, this aspect is not much relevant for deciding the controversy with which we are concerned.As already discussed earlier, it is trite to say that if `to discharge or dismiss an employee by way of victimisation is a general unfair labour practice on the part of the employer as laid down by Item 1(a) of Schedule IV and if such an unfair labour practice is to be prevented then action for such prevention has to be taken prior to the ultimate commission of such unfair labour practice. It is difficult to agree with the contention of the learned counsel for the appellant that such prevention can be made only after the actual order of discharge or dismissal of the employee is passed. At that stage there is no question for preventing the commission of such unfair labour practice, but it would be a case of setting aside or quashing such already committed unfair labour practice. It is difficult to appreciate how a discharge or dismissal of an employee by way of victimisation can be prevented after such discharge or dismissal has already taken place. Once such an unfair labour practice is completed and if final order is to be set aside it would amount to curing the malady rather than preventing it. As the saying goes `prevention is better than cure, and that is the very purpose of the Act. Or in other words, prevention of commission of such unfair labour practice is the heart of the Act. The interpretation tried to be put by the learned counsel for the appellant on the relevant provisions of Item 1 of Schedule IV would result in stultifying the very purpose and scope of thebecomes obvious that if an employer files a complaint before the Industrial Court under Item 5 or 6 of Schedule III that the Union is seeking to stage, encourage or instigate such forms of coercive actions as wilful `go slow or seeks to demonstrate at the residence of employers and if such an action is to be prevented a complaint has to be filed before the actual demonstration takes place or actual `go slow policy is resorted to. Once such an action takes place there would remain no occasion to prevent such an action in good time. Consequently, on the same lines it cannot be said that unfair labour practice on the part of the employer also cannot be prevented till the actual unfair labour practice gets committed by him. We have also to keep in view that the Maharashtra Act is a social welfare legislation and in interpreting such a welfare legislation, such a construction should be placed on the relevant provisions which effectuates the purpose for which such legislation is enacted and does not efface its very purpose of prevention of unfair labour practice.Following the aforesaid rule of construction, therefore, we must hold that the interpretation of Item 1 of Schedule IV of the Maharashtra Act as canvassed by the learned counsel for the appellant and the intervenors would frustrate the very scope and ambit of the Maharashtra Act, in effectuating the prevention of the alleged unfair labour practice. While on the other hand, if a wider interpretation is placed on the relevant provisions of Item 1 of Schedule IV, as discussed earlier, apart from not straining the language which even may become permissible on the rule of purposive construction, the said construction would fructify the very purpose for which the Maharashtra Act was enacted.44. Before concluding this discussion, we may refer to the judgment of this Court in Chanan Singhs case (supra) on which strong reliance was placed by the learned counsel for the appellant. Sh. Pai submitted that when merely a show cause notice is issued for taking action against an employee, if it is challenged in the Court, it would be a premature challenge. We fail to appreciate how the aforesaid decision can be pressed in service by the learned counsel for interpreting the relevant provisions of Item 1 of Schedule IV of the Maharashtra Act. In the aforesaid decision, this Court held that when a show cause notice is issued against punishment, a writ petition under Articles 226 and 227 would be premature as there would be no grievance of punitive action which can be ventilated in the Court. This decision was based on the general principle that against mere show cause notice, writ petition would be premature. The ratio of that decision cannot be of any assistance for interpreting the express language of Item 1 of Schedule IV of the Maharashtra Act read with its other relevant provisions, which are meant to prevent the commission of unfair labour practice by arming the appropriate Courts with jurisdiction to look into such complaints. For all these reasons, therefore, it must be held that the Division Bench of the High Court was perfectly justified in taking the view that a contemplated action for dismissal or discharge of an employee on any of the grounds mentioned in Item 1 of Schedule IV of the Maharashtra Act could be made the subject-matter of complaint before the Labour Court under Section 28(1) of the Maharashtra Act. We have to keep in view the fact that the Maharashtra Act is in the field since more than two decades and even a Full Bench of the Industrial Court, Maharashtra by its unanimous decision dated September 28, 1984 had taken the same view and on that basis numerous complaints were entertained by the Labour Courts in Maharashtra over decades. It was only when a learned single Judge of the High Court sitting at Nagpur, by his decision dated April 27, 1989 struck a discordant note that the present controversy cropped up. In our view, no fault can be found with the reasoning adopted by the Division Bench of the Bombay High Court for overruling the said contrary decision of the learned Single Judge of the Bombay High Court sitting at Nagpur in Writ Petition No. 2607 ofeven a threat is considered to be an unfair labour practice as per this Item. While, the unfair labour practice mentioned in Item 1 of Schedule IV does not cover any threat but actual order of discharge or dismissal. It is not possible to agree. The reason is obvious. A mere threat to discharge or dismiss an employee if he joins a union by itself may be an unfair labour practice as per Item 1(a) of Schedule II though the threat might not have been translated into any attempt in the direction of discharge or dismissal. Still, such a threat would constitute unfair labour practice, which can be prevented by filing appropriate complaint before the Industrial Court under Section 5 read with section 28(1). But if the employer takes a concrete step towards discharging or dismissing an employee on any of the grounds contemplated by Item 1 of Schedule IV, then it would not be in the realm of mere threat but would be translated into an actual action of taking a calculated step towards such alleged contemplated unfair labour practice by serving chargesheet and starting departmental enquiry and/or putting the employee under suspension with the ultimate object in view. At that state the alleged unfair labour practice of engaging in discharging or dismissing the employee on the grounds contemplated in Item 1 of Schedule IV can be said to have taken place. It is obvious that if an employer merely threatens the employee to discharge him by way of victimisation etc. and such a threat is not followed by any attempt by way of starting departmental enquiry or taking any other concrete step as aforesaid, such a simplicitor threat would not get covered by Item 1 of Schedule IV. It would also not be covered by Item 1(a) of Schedule II, as it is not a threat to discharge or dismiss an employee if he joins a union. For the purpose of attracting Item 1 of Schedule IV, apart from mere threat, some concrete step like starting departmental enquiry has to be taken by the employer before such an action can be brought in challenge by the concerned employee on any of the grounds mentioned in Item 1 of Schedule IV. Consequently, merely because the legislature has not repeated the terminology of mere threat while enacting Items of Schedule IV, it would not mean that before the final order of discharge or dismissal is passed on any of these grounds mentioned in Item 1 of Schedule IV and only first step is taken in that direction, the unfair labour practice o discharge or dismiss such employee on any of these grounds mentioned in Item 1 of Schedule IV cannot be said to have taken place, or on that basis the complaint would be premature, as submitted by Shri Pai, learned senior counsel for thewe have discussed earlier, the word ``to would include any action towards the final goal of the action. Schedule IV, as noted earlier, speaks about the general unfair labour practice on the part of employers. Therein barring Item No. 9, everywhere we find the user of the Infinitive. Same is the case with the wording of Schedule II barring Item No. 6 and the wording of Scheduletaking into consideration the interpretation-aspect as also the grammar-aspect, I am of the view that it will not be proper to put a mere Literal Construction on the wording of Item 1 of Schedule IV to the Act. I have no doubt in my mind in observing that here the language is not plain. It does not admit of but one meaning. Therefore, one would be justified in adverting to the Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV. I may further observe that in doing so, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility. In such a situation we should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result. Further, as observed earlier, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the Statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of theis true that the word ``practice connotes repeated events but that will not affect the construction to be placed on the words ``unfair labour practice to dismiss or discharge as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Itemdeciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be.Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated.