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2010 Supreme(Bom) 1205
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
B.P. DHARMADHIKARI, J.
Birla Cotsyn (India) Ltd., Khamgaon – Petitioner
Vs.
Tarachand s/o Chiranjilal Sharma and others – Respondents
WRIT PETITION Nos. 5317, 5318 & 5319 OF 2009.
Decided on : 26th August, 2010.
Advocate Appeared:
Shri V.R. Thakur with Shri H.V. Thakur, Advocate for Petitioner.
Shri S.D. Thakur with Shri P.S. Kshirsagar, Advocate for respondent no.1 in all petitions.
Learned AGP for respondent nos. 2 and 3 in all petitions.
The main legal point established in the judgment is that the Labour Court has jurisdiction to determine the status of employees and that the grant of back wages as an interim measure must be justified and sustainable.
Headnote:
ULP Act - Labour Court Orders - Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 3(13) of Bombay Industrial Relations Act, 1947 - Section 3(39) of BIR Act
Fact of the Case:
The employer challenged the orders of the Labour Court and Industrial Court, arguing that the courts could not determine the disputed status of the employees as the courts exercise summary jurisdiction under Section 28. The employees filed ULP complaints challenging their oral terminations. The Labour Court held the complaints to be maintainable, and the Industrial Court dismissed the employer's revision. The Labour Court granted interim reinstatement and 50% back wages to the employees.
Finding of the Court:
The court found that the Labour Court correctly held the complaints to be maintainable and that the Industrial Court had no jurisdiction to entertain the disputes. The court also found that the grant of 50% back wages as an interim measure was unsustainable and quashed that portion of the orders.
Issues: The main issues were the jurisdiction of the Labour Court and Industrial Court to determine the disputed status of the employees and the sustainability of the grant of 50% back wages as an interim measure.
Ratio Decidendi: The court held that the Labour Court had jurisdiction to determine the status of the employees and that the Industrial Court had no jurisdiction to entertain the disputes. The court also found that the grant of 50% back wages as an interim measure was unsustainable.
Final Decision: The court partly allowed the writ petitions, modifying the orders of the Labour Court to quash the direction to pay 50% back wages from the date of termination till reinstatement, while maintaining the remaining portions of the orders.
1. Challenge in all this three writ petitions is to identical orders passed by Labour Court appeal by Industrial Court in revisions. All complaints are under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ULP Act). Contention of Employer Petitioner in short in all matters is Labour Court or Industrial Court could not have gone into the question of disputed status of respective respondent no.1 in all these Writ Petitions as these courts under Section 28 exercise summary jurisdiction. Hence, only when relationship of employer and employee is either undisputed or indisputable, the jurisdiction can be exercised. Looking to the nature of controversy and at the request of parties, matters have been heard finally at admission stage by making Rule returnable forthwith.
I have heard Shri V.R. Thakur with Shri H.V. Thakur, learned Counsel for Employer/Petitioner and Shri S.D. Thakur with Shri P.S. Kshirsagar, learned Counsel for respective respondent no.1. Learned AGP has appeared for respondent nos. 2 and 3.
2. Respondent no.1 in Writ Petition No. 5318/2009 has filed ULP complaint 26/2008 challenging his oral termination dated 22/7/2008 on 19/8/2008. Petitioner / Employer filed written statement and also an application at Exhibit 10 to dismiss that complaint as not tenable stating that employee was working as finishing supervisor/shiftin charge in managerial and administrative capacity at the time of his termination. Labour Court passed an order on this objection on 03.03.2009 and framed preliminary issue about maintainability of complaint. It recorded evidence on that issue and passed order holding complaint to be maintainable. It held that employee was working in supervisory capacity but his basic pay was only Rs. 5852/ i.e. less than Rs. 6500/ per month and hence, he did not go out of definition of employee as given in Section 3 (13) of Bombay Industrial Relations Act, 1947; hereinafter referred to as BIR Act. Petitioner then challenged that order in revision under section 44 of ULP Act in ULP Revision No.24/2009. On 12/8/2009 Industrial Court dismissed that revision. Labour Court thereafter on 6/10/2009 passed order below Exhibit 2 and granted relief of interim reinstatement with direction to pay 50% back wages from the date of termination till his reinstatement. These orders dated 21/4/2009 and 6/10/2009 of Labour Court and order dated 12/8/2009 of Industrial Court are questioned in Writ Petition No. 5318/2009. Respondent no. 1 in Writ Petition 6
No.5317/2009 filed ULP complaint 20/2008 challenging oral termination on 23/7/2008. Similar type of application at Exhibit 16 to dismiss his ULP complaint was preferred by Employer and on 3/3/2009, Labour Court framed preliminary issue. After appreciating evidence of parties, on the 21/4/2009 it rejected that application holding that there was no evidence that duties of employee were either managerial or supervisory and his basic pay was Rs. 5446/ i.e. less than Rs. 6500/ per month. Employer challenge this in ULP Revision No. 25/2009 and by common judgment dated 12/8/2009 that revision came to be rejected. Thereafter on 6/10/2009, Labour Court allowed prayer of employee for interim relief and directed employer to reinstate him with further direction to pay 50% back wages from termination till reinstatement. These three orders form subject matter of challenge in Writ Petition No. 5317/2009. Respondent no. 1/Employee in Writ Petition No. 5319/2009 filed ULP Complaint No.28/2008 alleging oral termination on 1/9/2008. Petitioner raised similar objection then by filing application at Exhibit 11 and vide order dated 3/3/2009, Labour Court framed preliminary issue. On 21/4/2009 it passed an order rejecting application at Exhibit 11 holding that employee was not performing administrative or supervisory function. It also found that his basic pay was Rs. 5754/ only. ULP Revision No. 24/2009 preferred by Em
