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TMI Blog1995 (9) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... he employer. The learned Single Judge of the Bombay High Court confirmed that view, but the appellate Bench of the High Court allowed the writ appeal filed by the respondent-workmen and took a contrary view. That is how the employer is before us in this appeal. BACKGROUND FACTS A few relevant facts are required to be noted at the outset. The predecessor of the present appellant-company, Hindustan Lever Limited, the Tata Oil Mills Company Limited served chargesheets on Respondent Nos.1 to 9 for certain alleged misconduct. Respondent Nos.1 to 9 instituted Complaint (ULP) Nos. 90 to 98 of 1989 before the Presiding Officer, First Labour Court, Bombay, alleging therein, inter alia, that the appellant's predecessor company had engaged in commission of unfair labour practices referred to in Item 1 of Schedule IV of the Maharashtra Act. It was the case of the respondents in the said complaints that in pursuance of the show-cause notices, inquiry was being conducted and they apprehended that their services would be terminated. The respondents also filed applications for interim relief under Section 30(2) of the Maharashtra Act seeking interim injuction restraining the employer-company fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition, by I.A. No. 4 of 1995, the present appellant-company i.e. the Hindustan Lever Limited, applied to be substituted in place of the original petitioner, the Tata Oil Mills Company Limited, on the ground that the original petitioner had merged with M/s Hindustan Lever Limited. The said I.A. was allowed and that is how the present appellant-company has prosecuted this appeal by special leave. The Employer's Federation of India accompanied by M/s Blue Star Limited, also filed I.A. No. 3 of 1992 seeking permission of this Court for intervention as they were interested in supporting the petitioner-company in the special leave petition. That application for intervention was also allowed. The intervenors have filed their written submission in support of this appeal. They have also appeared through their learned counsel who was heard in this appeal. RIVAL CONTENTIONS Shri Pai, learned Senior Counsel, appearing for the appellant-company and the learned counsel for the intervenors contended that the Division Bench of the High Court was in error in taking the view that the complaints filed by the respondent-workmen were maintainable even prior to the passing of the dismissal or dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Maharashtra Act, which would necessarily mean that such complaints could be filed prior to the actual commission of the final act of the unfair labour practice complained of. The submission of the appellant's counsel would make the very scheme of preventing unfair labour practice inoperative and otios. That the relevant provisions of the Maharashtra Act clearly contemplate filing of complaints not only against the final act of discharge or dismissal of employees by way of unfair labour practice, but even at stages prior to the final stage where the employer completes such an exercise. That such was the view taken years back by the Full Bench of the Maharashtra Industrial Court and which was followed by all Courts in Maharashtra functioning under the Maharashtra Act. That the view taken by the Division Bench of the High Court was in consonance with the scheme of the Act and fructified the said scheme. That it is a social legislation hence a liberal interpretation should be placed on the scheme of the Act, with a view to subserve the purpose for which Maharashtra Act was enacted. That the provisions of the Industrial Disputes Act fell short of the achievement of goal of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent authority as per Section 10, if the persons applying for reference represented majority of each party as laid down by Section 10(2). "Industrial Dispute" as defined by Section 2(k) of the I.D. Act, 1947 provides as under :- "Industrial Dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person; " Only with effect from 1.12.1965, Section 2(A) was inserted in the I.D. Act wherein even an individual workman could raise an industrial dispute in connection with his discharge or dismissal or otherwise termination of service. For all other types of industrial disputes, a majority of workmen had to support the dispute before the appropriate Government could refer it for adjudication of competent Court. However, in either case, reference of such industrial dispute had to be made by the appropriate Government under Section 10 of the I.D. Act. There was no provision for reference of any industrial dispute under the Central Act, for preventing any unfair labour practice, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any remedy to the workmen to raise a dispute regarding prevention of any unfair labour practice on the part of the employer who had set in motion machinery for discharging or dismissing workmen by way of alleged unfair labour practice. Thus, in the background of the then existing lacuna both under the Central Act, i.e. the I.D. Act and the B.I.R. Act regarding any provision for prevention of unfair labour practice, we will have to examine the scheme of the Maharashtra Act which seeks to provide a remedy for prevention of such unfair labour practices and to find out how it supplies the lacuna and tries to achieve its goal. SCHEME OF THE MAHARASHTRA ACT The preamble of the Act lays down as under :- "An Act to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognised unions; to provide for declaring certain strikes and lock-outs as illegal strikes and lock-outs; to define and provide for the prevention of certain unfair labour practices; to constitute courts (as independent machinery) for carrying out the purposes of according recognition to trade unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices" as per Section 3(16) mean unfair labour practices as defined in Section 26. When we turn to Section 26, we find that it occurs in chapter VI dealing with unfair labour practices. It provides that in this Act, unless the context requires otherwise, "unfair labour practices" mean any of the practices listed in Schedules II, III and IV. That takes us to the concerned Schedules. Schedule II of the Act deals with unfair labour practices on the part of the employers. Schedule III of the Act deals with unfair labour practices of trade unions of employees and then comes Schedule IV which deals with general unfair labour practices on the part of the employers. As we are directly concerned with Item 1 of Schedule IV of the Act, it is necessary to reproduce the said item with all its clauses at this stage. SCHEDULE IV General Unfair Labour Practices on the Part of employers 1. To discharge or dismiss employees- (a) by way of victimisation ; (b) not in good faith, but in colourable exercise of the employer's rights; (c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence; (d) for patently false reasons; (e) on untrue or trumped up alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yee on ground (a) mentioned in Item 1 of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee can make out a strong prime facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In his connection, it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item 1 of Schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on such grounds with a view to discharge or dismiss an employee is considered by the Act to be an unfair labour practice on the part of the employer. The Division Bench of the High Court for coming to its conclusion has heavily relied upon the words "to discharge or dismiss employees" as found in Item 1 of Schedule IV. We find that the term "to discharge or dismiss" does indicate even attempted action towards such discharge or dismissal. In this connection, we may profitably refer to the meaning of the term "to" as found in various dictionaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice on the part of the employer "to" discharge or dismiss an employee on any of the listed grounds would include both the final act of discharge or dismissal of employee on any of these grounds as well as any penultimate step taken towards that destination and object by starting the process of disciplinary enquiry on giving the chargesheet to the employee and/or suspending an employee pending or in contemplation of such enquiry and all further steps during such departmental enquiry about which a complaint can be made on permissible grounds. It was next vehemently contended by the learned counsel for the appellant that if the very attempt on the part of the employer by initiating departmental proceedings is tried to be covered by a complaint by the employee on any of the grounds mentioned in clauses (a) to (g) of Item 1 of Schedule IV, then, some of the clauses themselves would contra-indicate such a construction as they can be applied only at the final stage where such discharge or dismissal of the employee takes place. Clause (g) of Item 1 of Schedule IV was pressed in service by way of illustration. It was submitted that before this clause can apply it must be shown that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiating the process towards such ultimate discharge or dismissal of the employee, Section 27 of the Maharashtra Act gets attracted even at a prior stage when such unfair labour practice is sought to be resorted to by the employer by engaging himself in such an unfair labour practice. In other words, to take an illustration, if it is alleged in a given case that the employer seeks to discharge or dismiss an employee by way or dismiss an employee by way of victimisation and for that purpose he has initiated the process of departmental enquiry by issuing the chargesheet to the employee concerned, the employee concerned can legitimately urge that the employer is guilty of such unfair labour practice in which he seeks to engage himself and, therefore, the prohibition enshrined in Section 27 gets squarely attracted against him. It is not as if that in such a case the employer can be said to have engaged himself in any unfair labour practice of discharging or dismissing the employee by way of victimisation only after the ultimate stage is reached and the order of discharge or dismissal sees the light of the day. The prohibition against engagement in any unfair labour practice as menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represents a present perfect tense, meaning thereby an action which has got completed in presenting. The learned counsel for the appellant could have submitted with emphasis that the complaint could be filed on the ground of alleged unfair labour practice on the part of employer to discharge or dismiss an employee by way of victimisation only after the action was completed and the discharge or dismissal was effected on that ground if Section 28(1) would have contained only the words "has engaged". But the legislature has conferred jurisdiction on the Labour Court to entertain the complaints also on the additional ground that the employer is engaged in any unfair labour practice. This clearly indicates a present continuous action as it reflects a present continuous tense. That would include a complaint regarding the employer, who at present is engaging in the alleged unfair labour practice by way of victimisation. That would indicate actions which are contemplated and in pipeline but which are still not finally completed. If the learned counsel for the appellant is right that only the final act of discharge or dismissal can be covered by the sweep of Section 28(1), then the termino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said to be engaged in such discharge if it is shown that an attempt is made towards such a discharge with an intention to ultimately discharge the employee. We may also refer to Section 28(3), which empowers the concerned Court on receipt of the complaint under Section 28(1) to cause an investigation into the said complaint to be made by the investigating officer, if thought necessary and direct that a report in the matter may be submitted by him to the Court, within the period specified in the direction. Therefore, it is not as if that the moment a complaint is filed the Labour Court can mechanically pass an order intercepting the proceedings of any departmental enquiry. It can in appropriate cases even cause a preliminary enquiry about the correctness of the allegations in the complaint through the investigating officer. Before parting with Section 28(1) an argument submitted by the learned counsel for the appellant is required to be noted. It was submitted that limitation for filing complaints under Section 28(1) is to start from the date of occurence of unfair labour practice and that date of occurrence of the alleged unfair labour practice could be only the date when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng engaged in such unfair labour practice and such engagement in unfair labour practice continues and has not ended. This also clearly indicates that the complaint can be made regarding the alleged actions of the employer which amount to unfair labour practice, but which have not yet finally culminated into ultimate orders but are in the pipeline or are being attempted to be passed and proceedings are initiated for passing such ultimate orders which are alleged to be contrary to Item 1 of Schedule IV of the Maharashtra Act. Sub-section (2) of Section 30 of the Maharashtra Act lays down:- "In any proceeding before it under this Act, the Court, may pass such interim order (including any temporary relief or restraining order) as it deems just and proper (including directions to the person to withdraw temporarily the practice complained of, which is an issue in such proceeding), pending final decision :- Provided that, the Court may, on an application in that behalf, review any interim order passed by it." The learned counsel for the appellant submitted that even if the final order of discharge or dismissal is passed by the employer by way of victimisation as alleged by the employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any person who fails to comply with any order or the Court under clause (b) of sub-section (1) or sub-section (2) of Section 30 of this Act shall on conviction, be punished with imprisonment which may extend to three months or with fine which may extend to five thousand rupees." Having seen the aforesaid relevant provisions, we may now consider the main contentions canvassed by the learned counsel for the appellant. It was vehemently submitted by the learned counsel for the appellant and also by the learned counsel for the intervenors that the High Court was in error when it took the view that unfair labour practice is not punishable under the Maharashtra Act. In this connection, our attention was invited to Section 25-U of the Industrial Disputes Act which reads as under:- "Penalty for committing unfair labour practices. - Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both." Our attention was also invited to Section 25-T of the Industrial Disputes Act which reads as under :- "Prohibition of unfair labour practice. No employer or workm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the legislation intends to prevent commission of unfair labour practices through the intervention of the competent court and for that very purpose, the Act is enacted. This is clearly reflected by the provisions of Section 28(1) and Section 30(1) of the Maharashtra Act. As already discussed earlier, it is trite to say that if `to discharge or dismiss an employee by way of victimisation' is a general unfair labour practice on the part of the employer as laid down by Item 1(a) of Schedule IV and if such an unfair labour practice is to be prevented then action for such prevention has to be taken prior to the ultimate commission of such unfair labour practice. It is difficult to agree with the contention of the learned counsel for the appellant that such prevention can be made only after the actual order of discharge or dismissal of the employee is passed. At that stage there is no question of preventing the commission of such unfair labour practice, but it would be a case of setting aside or quashing such already committed unfair labour practice. It is difficult to appreciate how a discharge or dismissal of an employee by way of victimisation can be prevented after such disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bour practice. In this connection, we may usefully turn to the decision of this Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985 (4) SCC 71) wherein Chinnappa Reddy,J., in para 4 of the Report has made the following observations: "The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the`colour', the `content' and the `context' of such statutes (we have borrowed the words from Lord wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vassed by the learned counsel for the appellant and the intervenors would frustrate the very scope and ambit of the Maharashtra Act, in effectuating the prevention of the alleged unfair labour practice. While on the other hand, if a wider interpretation is placed on the relevant provisions of Item 1 of Schedule IV, as discussed earlier, apart from not straining the language which even may become permissible on the rule of purposive construction, the said construction would fructify the very purpose for which the Maharashtra Act was enacted. Before concluding this discussion, we may refer to the judgment of this Court in Chanan Singh's case (supra) on which strong reliance was placed by the learned counsel for the appellant. Sh. Pai submitted that when merely a show cause notice is issued for taking action against an employee, if it is challenged in the Court, it would be a premature challenge. We fail to appreciate how the aforesaid decision can be pressed in service by the learned counsel for interpreting the relevant provisions of Item 1 of Schedule IV of the Maharashtra Act. In the aforesaid decision, this Court held that when a show cause notice is issued against punishment, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e threat might not have been translated into any attempt in the direction of discharge or dismissal. Still, such a threat would constitute unfair labour practice, which can be prevented by filing appropriate complaint before the Industrial Court under Section 5 read with Section 28(1). But if the employer takes a concrete step towards discharging or dismissing an employee on any of the grounds contemplated by Item 1 of Schedule IV, then it would not be in the realm of mere threat but would be translated into an actual action of taking a calculated step towards such alleged contemplated unfair labour practice by serving chargesheet and starting departmental enquiry and/or putting the employee under suspension with the ultimate object in view. Act that stage the alleged unfair labour practice of engaging in discharging or dismissing the employee on the grounds contemplated in Item 1 of Schedule IV can be said to have taken place. It is obvious that if an employer merely threatens the employee to discharge him by way of victimisation etc. and such a threat is not followed by any attempt by way of starting departmental enquiry or taking any other concrete step as aforesaid, such a simp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is called the Simple Infinitive. To discharge or dismiss merely names the action denoted by the Verb discharge or dismiss, and is used without mentioning any subject. The expression is, therefore, not limited by person and number as a Verb that has a subject, and is, therefore, called the Verb Infinite, or simply the Infinitive. The Infinitive is a kind of noun with certain features of the Verb, especially that of taking an object (when the Verb is transitive) and adverbial qualifiers. In short, the Infinitive is a Verb-noun (and is called a Gerund). A Gerund is that form of the Verb which ends in ing, and has the force of a Noun and a Verb; it is a Verbal Noun. The word to is frequently used with the Infinitive, but is not as essential part or sign of it. The Infinitive may be active or passive. When active, it may have a present and a perfect form, and may merely name the act, or it may represent progressive or continued action. Then comes the question of Tense. Here I wish to elaborate by taking an illustration thus :- (1) I speak - The Verb shows that the action is mentioned simply, without anything being said about the completeness or incompleteness of the action. Here the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting to the Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV. I may further observe that in doing so, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility. In such a situation we should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result. Further, as observed earlier, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the Statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. Lastly, it cannot be forgotten that the Statute shall have to be read as a whole." The aforesaid observations in Full Bench judgment of Maharashtra Tribunal are well sustained on the scheme of the Act, which we have discussed earlier. Consequently, it is not possible to agree with the written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means often, customarily or habitually. It is true that the word "practice" cannotes repeated events but that will not affect the construction to be placed on the words "unfair labour practice to dismiss or discharge" as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Item 1. In fact, whether such an alleged practice should be based on repetitive acts or a single act is strictly not relevant for deciding the question whether an attempt towards commission of such a practice, when the final order of dismissal or discharge has not been passed, can be made subject-matter of the complaint under the Maharashtra Act. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fail to appreciate how this will affect the correct connotation of the word "prevention". If the alleged unfair labour practice of discharge or dismissal of an employee is to be prevented, then as discussed earlier, it must necessarily contemplate an intervention of the competent Labour Court at a stage prior to the actual commission of such unfair labour practice. Reference made in paragraph VI to the Bombay High Court's judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provisions of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well- sustained. For all these reasons, the appellant has made out no case for our interference in this appeal. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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