Bajirao Rajaram Patil. vs Maharashtra State Co-operative Bank Ltd. , and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(Bom) 610

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Bajirao Rajaram Patil. .....Petitioner.
Versus
The Maharashtra State Co-operative Bank Ltd., another ......Respondents.
Writ Petition No. 5184 of 1996, decided on, 29-10-1996.
Advocates appeared:
R.J. Kochar, for the petitioner.
Ashok D. Shetty R. Kinnerkar with J.M. D’Silva, for the respondents.

Headnote:Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
       1507 -Sections 20. 21 and 28(1), Schedule IV. Items 3 and 9-Power to file complaint by Union-Bank official transferred on unfair labour practice-Challenge-Contention-Representative Union empower to file complaint-Held-Provision of Section 21(2) of M.R.T.U. Act not applicable-No bar to filing complaint is maintainable.-A plain reading of sub-section (1) of Section 28 would show that any Union or any employee or any employer or any Investigating Officer aggrieved by act of any person who is engaged in or is engaging in any unfair labour practice may file a complaint within 90 days of occurrence of such unfair labour practice before the competent Court. Section 28 of course has to be read with other provisions of M.R T.U. & P.U.L.P. Act including Sections 20 and 21, but where the alleged unfair labour practice in the complaint is not covered by Sections 20 and 21, it is clear that any affected employee in an undertaking to which Industrial Disputes Act applies or in an under- taking to which Bombay Industrial Relations Act as the case may be may file complaint aggrieved by an unfair labour practice and it cannot be said that such complaint has to be med by a recognised union or representative union.
       How can an order of transfer of any individual employee affect the general employees of an industrial establishment Besides that when M.RT.D. & P.D.L.P. Act does not put any embargo in filing complaint by affected employee challenging his transfer, such right cannot be taken away or restricted by holding that it has to be espoused be recognised or representative union. Such proposition would definitely tantamount in distorting Section 28, which in my view is not permissible. The argument of the learned Counsel for respondent No. 1 that any individual dispute save dismissal discharge removal and retrenchment has to be espoused by recognised union is not supported by any of the provisions of the M.RT.D. & P.D.L.P. Act or the provisions of the Bombay Industrial Relations Act.
       Sections 28, 20(2) and 21(2). Schedule IV. Items 3 and 9-Complaint filed by affectable employee-Transfer-Not maintainable being not filed through recognised union-Challenge-Industrial Court erred in dismissing the complaint as not maintainable.- This Court unable to accept the contention of . ‘R that the complaints by the employees affected invoking the provisions of Items 5 and 9 of Schedule IV of the Act were not maintainable.
       This Court, therefore of the view that the Industrial Court erred in dismissing the complaint as not maintainable.

JUDGMENT - R.M. LODHA, J.:---Rule. Returnable forthwith. Mr. Shetty waives service for Respondent No. 1

2.The learned Counsel for the parties submit that Respondent No. 2 is formal party and service on Respondent No. 2 may be dispensed with. Order accordingly.

3.By consent writ petition is heard finally at this stage.

4.The important question that arises in this writ petition filed under Articles 226 and 227 of Constitution of India is whether the complaint filed by an affected employee relating to his transfer from one place to another covered under Item-3 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, M.R.T.U. P.U.L.P. Act, 1971') could be filed by such affected employee or has to be filed by recognised union?

5.The aforesaid question arises in the following manner. The Petitioner (for short, employee') was appointed in the Maharashtra State Co-operative Bank Ltd. (for short, employer') on the post of Junior Officer. The petitioner has been transferred from time to time. On 22-2-91 the employer ordered transfer of the employee from Nasik to Bombay in the accounts department of the employer Bank. The employee was aggrieved by the transfer order dated 22-2-91 and he filed a complaint of unfair labour practice under the M.R.T.U. P.U.L.P. Act, 1971, particularly under items -3,5,6,9, and 10 of Schedule -IV of that Act. It appears that the employee also made an application for interim relief in the said complaint and though initially interim-relief was granted by the Industrial Court but, it was later on vacated by the order dated 22-7-91. The said order passed by the Industrial Court dated 22.7.91 vacating the interim relief was challenged before this Court by the employee in Writ Petition No. 3287 of 1991. The said writ petition was ultimately disposed of by this Court by the order dated 24th March 95 by consent of the parties and accordingly the operation of the transfer order remained stayed during pendency of the complaint. The employer made an application before the Industrial Court on 18-9-96 raising the preliminary issue about the maintainability of the complaint on the ground that the said complaint filed by the employee was not maintainable in view of the judgement of the Apex Court in (Shramik Uttarsh Sabha, Appellant v. Raymond Woolen Mills Ltd. and others, Respondents)1, A.I.R. 1995 Supreme Court 1137. The Industrial Court heard the parties on the preliminary objection raised by the employer about the maintainability of the complaint and Industrial Court upheld the objection raised by the employer that complaint is not maintainable and by the order dated 1-10-1996 dismissed the complaint as not maintainable. The order passed by the Industrial Court, Nasik dated 1-10-96 is impugned in the present writ petition.

6.Mr. Kochar, learned Counsel appearing for the petitioner submits that principally the complaint filed by the employee is under Item-3 Schedule-IV of the M.R.T.U. P.U.L.P. Act, 1971 and under none of the provisions of the said Act the complaint filed by the employee under section 28 was not maintainable. According to him the judgement of the Apex Court in Shramik Uttar Sabha (supra) has no application to the complaint filed under the items other than 2 and 6 of Schedule-IV of the M.R.T.U. P.U.L.P. Act, 1971. The learned Counsel for the petitioner would urge that Industrial Court has misapplied the aforesaid judgement of the Apex Court and failed to consider the relevant provisions of the M.R.T.U. P.U.L.P. Act, 1971 which otherwise would show that complaint filed by the employee was maintainable. Mr. Kochar also relied upon the decision of this Court in Rama Bala Kate and Ors. and Walchandnagar Industries Ltd. Ors. reported in 1996 (1) L.L.J. 713. Mr. Kochar submitted in the alternative that even otherwise the judgement of the Apex Court in Shramik Uttar Sabha v. Raymond Woolen Mills (supra) shall

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