Remanded

M/S. Overnite Express Ltd. v. Maharashtra Samarth Kamgar Sanghatana and Ors.

Bombay HC7 Dec 2011APP/139/2009

Case brief

AI extract

What is this about?

The High Court set aside a writ disposal order that passed two irregularities: directing the State Government to make a reference under the Industrial Disputes Act without a prayer, and dismissing a complaint of unfair labour practices without reasons. The petition was remitted for a de novo decision.

What did the court decide?

The order dated 2.2.2009 in Writ Petition no.2859 of 2008 is set aside and the petition is remitted to the Single Judge for de novo consideration.

M/S. Overnite Express Ltd. Vs Maharashtra Samarth… — Service and Employment | Bombay HC (2011)

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pvr １ a139-09

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.139 OF 2009

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IN

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WRIT PETITION NO.2859 OF 2008

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M/s.Overnite Express Ltd.

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...Appellant

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vs.

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1.Maharashtra Samarth Kamgar
Sanghatana & Others....Respondents

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Mr.Shailesh S.Pathak, for Appellant.

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CORAM: D.K.DESHMUKH &
ANOOP V. MOHTA, JJ.

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DATED: 7th December,2011.

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P.C.:-

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1.Heard. The facts relevant for deciding

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this application are that the present respondents

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no.1 Maharashtra Samarth Kamgar Sanghatana had
filed Complaint (ULP) No.453 of 2007 before the

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pvr ２ a139-09

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Industrial Court. It was alleged that the

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present appellant who was respondent no.1 in the
Complaint is guilty of having committed unfair
labour practice under Item 1(a), (b) and 6 of
Schedule II and Item 6,9 and 10 of Schedule IV of
the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act. The

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effective reliefs that were claimed are to be
found in prayer clause (c) to (h), it reads as
under:-

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�(c)Hold and declare that the
action of respondent no.1 of keeping
the workmen as temporary years
together without extending the
benefits such as P.F., E.S.I.C. is
amounts to an unfair labour
practices.

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(d)Hold and declare that the
action of the respondent no.1 of
treating the workmen whose names

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have been shown in Exh.�B� as
contract labourers is amounts to an
unfair labour practice.

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３ a139-09

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(e)Direct the respondents� no.1
to make the workmen whose names have
been shown in Exh �B� as permanent
workmen and to show on their muster
roll.

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(f)Direct the respondents no.1
to pay the minimum wages to all the
workmen whose names have been shown
in Exh�B� to the main complaint with
arrears from the date of their
appointment.

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(g)Direct the respondents no.1
to start granting the facilities of
P.F., E.S.I.C., etc. immediately.

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(h)Direct the respondents no.1
to pay the wages for the month of
Sep 2007 and to pay regularly every
month on due date.�

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A preliminary objection was raised on behalf of

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the present appellant to the maintainability of

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the complaint on the ground that there is no

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employer-employee relationship between the

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employees on whose behalf the Complaint was filed
and the present appellant. That application was
decided by the Industrial Court by order dated
11.8.2008. The Industrial Court rejected that
preliminary objection and held that the complaint
is maintainable. The present appellant feeling

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aggrieved by that order of the Industrial Court
filed Writ Petition no.2859 of 2008. That Writ
Petition has been disposed of by order dated
2.2.2009. The complaint of the present appellant

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against that order of the learned Single Judge is

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that the Learned Single Judge has not considered
in detail the contention urged on behalf of the

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appellant to show that there is no employer
employee relationship between the present
appellant and the persons on whose behalf the
complaint was filed. The learned Single Judge,

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however, set aside the order which was challenged

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in that writ petition and dismissed the complaint

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as not maintainable. Though, this part of the

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order is in favour of the appellant, it is clear

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from the record that no reasons have been
recorded for making this order by the learned
Single Judge. The real grievance of the appellant
is against that part of the order made by the
learned Single Judge whereby the learned Single

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Judge has issued directions to the State

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Government to make a reference under Section 10
of the Industrial Disputes Act for adjudication

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of the issue raised in the Complaint. The

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submission of the learned Counsel is that this
direction could never have been issued by the

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learned Single Judge, because firstly the State
Government was not a party to the petition,
secondly if the learned Single Judge has

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dismissed the complaint on the ground that there

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does not appear to be employer-employee

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relationship between the parties, then reference

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under Section 10 of the Industrial Disputes Act

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also will not be maintainable. The learned

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Counsel further submitted that direction for

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pvr ６ a139-09

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making reference under Section 10 of the

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Industrial Disputes Act could not have been made
by the learned Single Judge suo motu without
there being any prayer in the petition. The
learned Counsel further submitted that in any
case such a direction which is adverse to the
interest of the appellant could not have been
made in his petition.

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2.None appears for original complainant-

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respondent no.1 though appearance is shown on the
board. We have heard the learned Counsel

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appearing for appellant. We have perused the
record.

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3.The learned Single Judge by the impugned
order has issued direction to the State

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Government to make reference under Section 10 of

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the Industrial Disputes Act of the issues that

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have been raised in the Complaint. The learned
Single Judge has totally bypassed the procedure

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that was prescribed by the Industrial Disputes

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Act for making reference. Section 10 of the
Industrial Disputes Act vests discretion on the
appropriate Government of referring issues to the
Industrial Court or not. The learned Single Judge
has taken away that statutory discretion which is

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vested by the Act with the appropriate
Government. The direction issued by the learned
Single Judge to the State Government to make
reference under Section 10 of the Industrial

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Disputes Act is a direction adverse to the
interest of present appellant, which could never

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have been issued in the petition filed by the

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appellant, specially when there is no prayer in

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the petition to that effect and where the State

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Government has not been joined as party to the
petition. Really speaking the only part of the
order by which the appellant is aggrieved is the

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part by which the State Government has been
directed to make a reference. Really, speaking
therefore, we could have, at the instance of the

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pvr ８ a139-09

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present appellant, set aside only that part of
the order, but we find from the order of the
learned Single Judge that the learned Single
Judge has dismissed the complaint and set aside
the order passed by the Industrial Court holding

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the complaint to be maintainable without
considering the material on record and without
giving detail reasons for doing so. The learned
Counsel, therefore, fairly submitted that we may
remit the petition back to the learned Single
Judge so that the matter can be considered in
detail by the learned Single Judge.

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4.In this view of the matter therefore, in

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our opinion, the following order would meet the
ends of justice:-

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The order dated 2.2.2009 passed in Writ

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Petition no.2859 of 2008 is set aside. That
petition is remitted back to the learned Single
Judge for denovo consideration and decision in

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accordance with law. The learned Single Judge is

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requested to hear the petition at an early date.

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The appeal is disposed of.

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(ANOOP V.MOHTA, J.)

M/S. Overnite Express Ltd. v. Maharashtra Samarth Kamgar Sanghatana and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Overnite Express Ltd. v. Maharashtra Samarth Kamgar Sanghatana and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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