1996(4) ALL MR 256
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B.N. SRIKRISHNA, J.

The Cosmos Co-Operative Bank Limited Vs. Shri. R.K.Banswal & Ors.

Writ Petition No.96 of 1990

27th August, 1996

Petitioner Counsel: Mr. V.P.SHINTRE for Mr.K.Y.MANDLIK
Respondent Counsel: Ms. N.D.BUCH

Bombay Industrial Relations Act (1946), S.84(1)(a) r.w. S.78(1) C(a) - Order of temporary withdrawal of a change under S.78(1)(C)(a) - It vitally affects parties and is a 'decision' within meaning of S.84(1)(a) - Appeal against such order is perfectly competent.

To ensure that there is no break down of industrial relations, even during the interregnum when an application is pending hearing and decision before the Labour Court, the statute has made an extraordinary provision empowering the Labour Court to direct the Employer to withdraw the change the legality of which is an issue pending for decision before the Labour Court. Having made such an extraordinary provision, the legislature was equally aware that an order of such nature needs to be subjected to judicial review by an Appellate Court. By section 84 of the Act the legislature has invested the Industrial Court with the power of hearing appeals against a decision of the Labour Court under paragraph 'C' of sub-section (1) of the Section 78. [Para 6]

An order for temporary withdrawal of a change certainly is of serious moment, it does vitally affect parties and would cause prejudice to the parties, if it happens to be erroneous and unjust. It is for this reason that such an order must be treated as a 'decision' within the meaning of section 84(1) of the Act. Hence order passed by the labour Court amounted to a 'decision' under the Act and appeal against it was perfectly competent.

1983(47) F.L.R. 218 Rel on. [Para 8]

Cases Cited:
1983 (47) F.L.R. 218 [Para 8]
AIR 1981 SC 1786 [Para 8]


JUDGMENT

JUDGMENT : This Writ petition under Articles 226 and 227 of the Constitution of India impugns an order dated 6-12-1989 made by the Member, Industrial Court, Pune, in Appeal (IC) No.4 of 1985 under section 84 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the Act').

2. The material facts relevant for deciding this writ petition lie in a narrow compass : The Petitioner is a Bank in the Co-operative Sector covered by the provisions of the Act. The First Respondent is the Member of the Industrial Court, Pune, constituted under section 10 of the Act. The Second Respondent is a Trade Union which is the representative and approved Union of the Employees in the Co-operative Banking Industry in the local area of Pune under the provisions of the Act.

3. The Second Respondent moved an application, being Application (BIR) No.3 of 1985, before the Second Labour Court, Pune, alleging illegal change on the part of the Petitioner in the matter of promotion of certain employees. The said application was made invoking the powers of the Labour Court under section78 of the Act. The Second Respondent also filed an application under section 78(1) C (a) of the Act and, pending the hearing of the application, sought from the Labour Court a direction to the Petitioner Employer to temporarily withdraw the change, the legality of which was the subject matter of Application (BIR) No.3 of 1985. After hearing parties, the Second Labour Court, Pune, made an order directing the Petitioner to withdraw temporarily the alleged illegal change complained of. Being aggrieved by the said order the Petitioner carried the matter in Appeal (IC) No.4 of 1985 before the Industrial Court, Maharashtra, Pune impugning the order dated 19th April, 1985. By the order dated 6.12.1989 the Industrial Court dismissed the appeal as not being tenable under the provisions of section84 of the Act. Hence, the Petitioner is before this Court by the present writ petition impugning the order of the Industrial Court summarily dismissing its appeal as not maintainable.

4. The appellate powers of the Industrial Court are provided for under section 84 of the Act. The only provisions relevant for our purpose would be section 84 (1) (a) of the Act which reads as under :

"Appeals - (1) Notwithstanding anything contained in section 83, an appeal shall lie to the Industrial Court -

(a) against a decision of a Labour Court in respect of a matter falling under clause (a) or (c) of paragraph A of sub-section (1) of section 78 except to the extent to which it determines whether a strike (lock-out, closure or stoppage) was illegal or not, or a decision of such Court under paragraph C of sub-section (1) of the said section;

(b) ..........

(c) ..........

(d) ...........

confining our attention to the subject matter of an application seeking a declaration of illegal change, it would be seen that, if the order of the Labour Court is one made under clause (a)(i) or (c) of paragraph A of sub-section (1) of section 78, deciding that any change is illegal under the Act, then the appeal would clearly be maintainable under clause (a) of section 84(1) of the Act before the Industrial Court. An appeal is expressly barred against an order of the Labour Court under clause (a), deciding whether a strike, lock-out, closure or stoppage was illegal or not. The last clause in clause (a) of section 84(1) provides for an appeal against a decision of the Labour Court under paragraph C of sub-section (1) of the said section.

5. Section 78-C of the Act is a provision intended to give power to the Labour Court to give a follow up directive. Clause (a) of 78-C is in two parts. The first part gives the power to the Labour Court to direct an Employer to withdraw any change which is "held" by the Labour Court to be illegal. The second part - the one relevant to us - invests power in the Labour Court to direct the Employer to withdraw "temporarily" any change, the legality of which is a matter of any proceeding pending before it for final decision. Clause (b) of section 78-C gives the Labour Court the power to direct the Employer to carry out any change, when such change is in issue in any proceeding before the Labour Court. Concentrating on the latter half of section 78(1) C (a), it appears to me that this provision is somewhat different from and in addition to the power of granting interim orders. This conclusion gets support if one looks at section 119-D of the Act, which specifically provides that in any proceeding before it under this Act, the Industrial Court, a Labour Court, or a Wage Board may pass such interim orders as it may consider just and proper.

6. In my view, the scheme of the Bombay Relations Act being one of ensuring industrial peace and amicable industrial relations, the legislative intent appears to be that any change that is declared to be illegal within the meaning of section 46 of the Act, which has the potential of disrupting industrial relations, is frowned upon by the statute. Not only is the Employer prevented from implementing an illegal change, but a corresponding right has been vested in the employees or representatives of employees to seek a declaration from the Labour Court that such change is illegal and also seek a direction for withdrawal of such an illegal change. it is conceivable that, such proceedings, though required to be disposed of expeditiously, take a long time during which the change about which the employees are complaining might cause hardship and prejudice to the employees. Apart from hardship and prejudice, the very continuation of the change, which is the subject matter of an application before the Labour Court, might adversely affect industrial relations. To ensure that there is no break down of industrial relations, even during the interregnum when an application is pending hearing and decision before the Labour Court, the statute has made an extraordinary provision empowering the Labour Court to direct the Employer to withdraw the change the legality of which is an issue pending for decision before the Labour Court. Having made such an extraordinary provision, the legislature was equally aware that an order of such nature needs to be subjected to judicial review by an Appellate Court. By section 84 of the Act the legislature has invested the Industrial Court with the power of hearing appeals against a decision of the Labour Court under paragraph 'C' of sub-section (1) of the section 78.

7. It is now necessary to notice the reason why the learned Judge of the Industrial Court was persuaded to hold that the appeal was not maintainable. The learned Judge seems to take the view that an order for temporary withdrawal of change would not be a 'decision' within the meaning of clause (a) of sub-section (1) of section 78 and, therefore, an appeal thereagainst would not lie. In my view, this is erroneous reasoning.

8. Mr. Shintre, the learned counsel for the Petitioner, brought to my attention the judgment of this Court in Satara District Central Co-operative Bank Ltd. Vs. Narayan Appaji Chavan and others (1983 (47) F.L.R. 218). Following the judgment of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and another (A.I.R. 1981 Supreme Court 1786), our Court has taken the view that an order which affects matters of moment or affects vital and valuable rights of the parties and works serious injustice to the party concerned and has the trappings of finality must be considered to be a 'decision' within the meaning of clause (a) of paragraph A of sub-section (1) of section 78 of the Act. In my view, the reasoning in this judgment is equally applicable to the present case. As I have already pointed out, an order for temporary withdrawal of a change certainly is of serious moment; it does vitally affect parties and would cause prejudice to the parties, if it happens to be erroneous and unjust. It is for this reason that such an order must be treated as a 'decision' within the meaning of section 84(1) of the Act. In my view, therefore, the order passed by the Labour Court amounted to a 'decision' under the Act. The appeal thereagainst was perfectly competent. The Industrial Court erred in dismissing the appeal as not tenable.

9. In the result, the writ Petition is allowed. The impugned order of the Industrial Court dated 6-12-1989 is hereby quashed and set aside. Appeal (IC) No.4 of 1985 is restored to the file of Industrial Court for hearing and disposal according to law. Rule accordingly made absolute.

There shall, however, be no order as to costs.

Petition allowed.