Writ Petition Nos. 332 of 2013, 333 of 2013

18th February, 2013

Petitioner Counsel: Mr. Kevic Setelwad,Mr. R.S. Pai,Mr. Mahesh Londhe,M/s. Sanjay Udeshi and Co.
Respondent Counsel: Mr. Sanjay Singhvi,Mr. Rajmohan Amonkar,Dr. G.R. Sharma,Mr. D.P. Singh

Cases Cited:
Bharat Petroleum Corporation Ltd., Mumbai Vs. Petroleum Workmen's Union, Thane and Ors., (I), 2011 III CLR 187 [Para 2,4,7]
The Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke of Bombay and others, (1976) 1 SCC 496 [Para 3]
Rohtas Industries Ltd. and another Vs. Rohtas Industries Staff Union and others, AIR 1976 SC 425 [Para 3]
U.P. State Bridge Corporation Ltd. And Others Vs. U.P.Rajya Setu Nigam S. Karamchari Sangh, 2005(5) ALL MR 942 (S.C.)=(2004) 4 SCC 268 [Para 3]
Bharat Petroleum Corporation Ltd. And Anr Vs. Bharat Petroleum Employees Union & Ors., (II), 2001(1) ALL MR 872=2001 III CLR 806 [Para 4]
Syndicate Bank and Another Vs. K.Umesh Nayak, (1994) 5 SCC 573 [Para 4]

JUDGMENT

JUDGMENT :- These matters were mentioned in the morning session when we had ordered that the same be listed on 20th February, 2013, to be taken first on board. However, after the lunch break, the matters were once again mentioned by the petitioners pointing out that it will be too late to consider the said matters on 20th February, 2013 as the impending strike was scheduled on 20th February, 2013 itself and would commence with the first shift which starts at 7.45 a.m. Moreover, the management may be forced to completely stop the production activity with effect from 19th February, 2013 itself. Considering the fact that 19th February, 2013 is a public holiday and the court would be closed on that day, with some reluctance the petitioners mentioned the matters and requested the court to take the matter today itself, if possible. We acceded to the request as the respondents were given due notice about the said mentioning. Accordingly, we directed the office to call out the matters at 4.45 p.m. today. The matters were called out as per the said direction.

2. We have heard the counsel for the parties on the question of grant of ad-interim relief. Having considered the rival submission, we have no hesitation in taking a view that the petitioners are entitled for ad interim relief in terms of prayer clause (c) which is in relation to strike notice dated 4th February, 2013 given by the respondent union. We are inclined to take this view following the exposition in the case between the same parties, Bharat Petroleum Corporation Ltd.,Mumbai v. Petroleum Workmen's Union, Thane and Ors. (I). [2011 III CLR 187]. In the said decision, in the backdrop of similar facts, the court opined that the petitioner industry is a Government Company and already notified under the provisions of Essential Commodities Act. The employees of the petitioner Corporation are under public duty to secure the uninterrupted equitable distribution and availability of the supplies of essential commodities at the sales outlets of the petitioner Corporation. In addition, the Court noticed that Section 22 of the Industrial Disputes Act applies to the petitioner industry. It mandates that no person employed in public utility services shall go on strike in breach of contract. Even on general provisions of strike and lockout as contained in Section 23 of the Act, the Court opined that the workmen of industries other than the Public Utility Services are also prohibited from going on strike during the pendency of the Conciliation Proceedings and seven days after the conclusion of such proceeding. Applying the same principle to the fact situation of the present case, we are inclined to grant ad interim relief. We say so because it is common ground that the conciliation proceedings is still pending pertaining to notice dated 4th February, 2013. The same is adjourned to 19th February, 2013 and is scheduled at 11.30 hours. Until the said conciliation proceedings are not finally terminated, the employees of the respondent union working in the petitioner industry cannot resort to strike lest, it would be illegal by virtue of section 23 and 24 of the Act.

3. To get over this position, counsel for the respondent Union would contend that the remedy of Writ Petition cannot be invoked in respect of industrial dispute between the parties. To buttress this submission, reliance is placed on the decisions of the Apex Court in the case of The Premier Automobiles Ltd vs. Kamlekar Shantaram Wadke of Bombay and others (1976) 1 Supreme Court Cases 496. In Para 23 clause 3 thereof, it is expounded that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. Reliance is also placed on another decision of the Apex Court in the case of Rohtas Industries Ltd. and another v. Rohtas Industries Staff Union and others AIR 1976 SUPREME COURT 425. In paras 27 and 29, the Court has followed the exposition in the above mentioned decision of the Supreme Court. Reliance is also placed on another decision of the Apex Court in the case of U.P. State Bridge Corporation Ltd. And Others vs. U.P.Rajya Setu Nigam S. Karamchari Sangh (2004) 4 Supreme Court Cases 268 : [2005(5) ALL MR 942 (S.C.)]. In para 12 of this decision, the court noted that although the observations made in the said decision were in the context of Jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless, it would need a very strong case for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner.

4. In the first place, this exposition cannot be pressed into service as an authority that the remedy of writ jurisdiction is unavailable or totally barred. On the contrary, the legal position restated is that in a very strong case, the High Court in exercise of writ jurisdiction can and ought to interfere to do substantial justice in the matter between the parties or for that matter in public interest. The decision of the Division Bench of this court, to which one of us (Justice A.M.Khanwilkar) was a party, in the case of Bharat Petroleum Corporation Ltd. (I) (Supra) is essentially founded on the earlier decision of the Division Bench of this court in the case of Bharat Petroleum Corporation Ltd. And Anr vs. Bharat Petroleum Employees Union & Ors. (II). [2001 III CLR 806] : [2001(1) ALL MR 872] and of the Delhi High Court which followed the Apex Court decision in the case of Syndicate Bank and Another v. K.Umesh Nayak (1994) 5 SCC 573. The principle underlying is that the High Court in Public Interest ought to interfere and pass appropriate directions to obviate the illegal strike which may have cascading effect on the interests of the common public. Indisputably, the petitioner industry has already been notified under the Essential Commodities Act, 1955 vide order dated 15th February, 2013 issued by the Government of Maharashtra. It is also indisputable that the product of the industry is an essential commodity.

5. In the circumstances, we grant ad interim in terms of prayer clause (c) and at the same time, we make it clear that the said ad interim relief would operate only in the context of the strike notice dated 4th February, 2013 Exhibit 'A' to this petition. We are constrained to make this observation as it was brought to our notice by the counsel for the respondent Union that besides the strike notice in question, the All India Petroleum Workers' Federation, National Federation of Petroleum Workers and Petroleum & Gas Workers' Federation of India have jointly given notice of strike on 1st February, 2013 for 20th February, 2013 from 6.00 a.m. to 22nd February, 2013 till 6.00 a.m.

6. That notice is not the subject matter of challenge before us nor any relief has been asked by the petitioners in connection with the said notice. Hence, we are not expressing any opinion with regard to the correctness of the said notice or any action taken by the members of the respondents on the basis of the said notice.

7. After the order is passed, counsel for the petitioners requested the court to incorporate similar directions as contained in para 13 and 14 of the decision in the case of Bharat Petroleum Corporation Ltd. (I) (Supra) between the parties, which read thus:

"13. At this stage, Counsel for the petitioner has made oral request that the order passed today be communicated to the in charge of the police officers of the concerned police stations as was done in the case between same parties in Writ Petition (L) No.2055 of 2011 by Another Division Bench (Chief Justice Mohit Shah & Dr.D.Y.Chandrachud, J.), which offices in turn will have to enforce the law and order situation in their area of jurisdiction. This prayer is opposed by the Counsel for the respondent Union. We fail to understand as to how the respondent Union can object to communication of this order passed by us today to the concerned police stations who may be responsible for maintaining the law and order situation in their area of jurisdiction.

14. Accordingly, we accede to the request of the petitioner Corporation and permit the petitioner to communicate the order passed today to the following police stations for necessary action:

i) RCF Police Station, Chembur,

ii) Vashi Naka Police Station, Mumbai.

iii) MRA Marg Police Station, Mumbai.

iv) Phaltan Road Police Station, Mumbai.

v) R.A.Kidwai Marg Police Station, Mumbai.

vi) Cuffe Parade Police Station, Mumbai,

vii) Wadala Police Station, Mumbai."

8. Counsel for the respondents Union submits that the said observation may not be necessary as the respondents are willing to give undertaking that their members will abide by and ensure that no law and order situation is created in the factory and office of the petitioner or its vicinity whatsoever. We appreciate the stand taken by the respondents in this behalf but that does not mean that the order passed by us should not be made known to the concerned Police Station. Accordingly, we permit the petitioner to give intimation to the concerned Police Station about the order passed today and leave the matter at that. We however, accept the undertaking given by the respondents through counsel.

9. List the writ petition for admission on 19th March, 2013 as scheduled as per CMIS. Reply affidavits be filed in the meantime.

10. The Ad-interim relief to continue till 19th March, 2013.

Ordered accordingly.