1997 Supreme(Bom) 520

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
F.I. Rebello, J.
Division Controller M.S.R.T.C.,Bhandara .....
Petitioner.
Versus
Gulab Tanbaji Bhandarkar
.... Respondent.
Writ Petition No. 1042 of 1996, decided on 1-10-1997.
Advocates appeared:
V.G. Wankhede, A.G.P., for pettioner.
N.S. Bhoyar, for the respondent.

Headnote:Section 30, Schedule IV, Item 1(g)-Industrial Disputes Act, 1947, Section 11-A-Power of review of punishment-Provisions of both the Acts, such as Industrial Disputes Act, MRTU and PULP Act are non-conflicting and independent of each of them, Labour Court, while dealing with an complaint under MRTU and PULP Act could not resort to powers under Section 11-A of Industrial Disputes Act in absence of any reference by Government under Section 10-D of ID Act.-Where an industrial dispute exists reference has to be made by the Appropriate Government under Section 10 of the Industrial Disputes Act. There was no provision for reference of an industrial dispute under the Industrial Disputes Act for preventing any unfair labour practice at the time of the Maharashtra Act saw the light of day. The Apex Court there noticed the amendment to the Industrial Disputes Act whereby the Vth Schedule was added .which catalogued unfair labour practices on the part of the employers, and the trade unions of the employers and on the part of the workmen and trade unions of workmen which are in pari materia with the unfair labour practices on the part of employers, the trade unions and general unfair labour practices on the part of employers, under the MRTU and PULP Act. This the Apex Court noted also did not provide for reference of an - unfair labour practice or an industrial dispute in connection with such unfair labour practice.

       A Single Judge of this Court had an occasion to consider the issue in the case of, Daji Murarrao Surve v. I.TC. Limited, Bombay, reported in 1990 Mh LJ 1117. The learned Single Judge (Kantharia, J.) held that the Authorities under the MRTU and PULP Act could interfere with the quantum of punishment not because of Section 11-Aof the Industrial Disputes Act but, on the reading of Item 1(g) of Schedule IV to the Mal1arashtra Recognitions of Trade Unions and Prevention of Unfair Labour Practices Act.

       Item 1(g) of Schedule IV refers, therefore, only to a misconduct of a minor or technical character, where punishment of dismissal or discharge has been imposed and as such the punishment is shockingly disproportionate so as to constitute an act of unfair labour practice. Would, therefore, in a case of a misconduct the authorities under the Act have jurisdiction to interfere with the order of punishment in1posed by he Disciplinary Authority. Schedule IV also contains Item 1(a) which is by way of victimisation and Item 1(b) which is not in good faith, but, in colourable exercise of the employers rights. A reading of the said items, would indicate that discharge or dismissal of an employee by items covered under Item 1(a), Item 1(b) or Item 1(g) or other items under Schedule IV would amount to an act of unfair labour practice if, an employee is discharged or dismissed. Therefore, can the courts in cases of dismissal or discharge under items of Schedule IV interfere with the punishment if it is shockingly dis-proportionate. There is no reason as to why considering the scheme of the Act and the purpose for which it was enacted namely to prevent unfair labour practices such a power to interfere cannot be read into the powers of the Labour Courts and the Industrial Courts, In terms of Section 30 of the MRTU and PULP Act the Court which means the Industrial or Labour Courts can take affirmative actions which includes directing reinstatement of the employee and calling on the employer to desist from such unfair labour practices. The power to issue directions to cease and desists from conunitting unfair labour practices and taking affirmative action is a discretion vested in the Court. The powers conferred on the Court is to be exercised when in the opinion of the Court it is necessary to effectuate the policy of the Act.

       In fact though, the said issue was not directly in issue in the case of Hindustan Lever Limiteds reported in 1995 (6) SCC 326, there is a passing reference by the Apex Court pointing out therein that the courts could interfere even before an employer discharges or dismisses an employee on a consideration of the grounds listed in clauses (a) to (g) of Item 1 of Schedule IV, In other words, the Industrial Court could interfere even before punishment is imposed. If, the Labour Court and the Industrial Court can interfere and preempt an employer from discharging or dismissing the employee even before the employer has dismissed or discharged the employee, it surely cannot be read to mean that the Industrial Courts and Labour Courts would have no powers to interfere in the matter of punishment. Item 1(g) of Schedule IV is restricted in character, limiting itself to shockingly disproportionate punishment in the case of misconduct of a minor or technical character. Thus, on the reading of the provisions of the Act and the purposes for which it is enacted, it would be clear that Labour courts and the Industrial courts under Section 30 of the MRTU and PULP Act could interfere with the punishment where it found that the same is shockingly disproportionate. The power, therefore, in the Labour Court or in the Industrial Court to interfere with the punishment is not traceable to Section Il-A of the Industrial Disputes Act but, traceable to Section 30 read with Items in Schedule IV of the MRTU and PULP Act.

       Section 30, Schedule IV, Items 1(g) and 1(i)-Interference with punishment-Where the cases are of minor misconduct severe punishment of dismissal can well be interfered with by slightly easy one, under Section 30 of the MRTU and PULP Act instead of Section 11-A of ID Act.