High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12517 OF 2024Ms H.h. Patel And Company Through Its Authorized OfficerVERSUSSuryachap Jarda Shramik Sangh Through Is Secretary Pandit Jamsing PatilMr. V. D. Hon, Senior Counsel h/f Mr. A. V. Hon, Advocate for PetitionerMr. P. V. Barde, Advocate for RespondentCORAM: R. M. JOSHI, J.DATE: 01st April, 2025PER COURT :-1.This petition takes exception to the judgment and order dated08.08.2024 passed by Industrial Court, Jalgaon in Complaint ULP No. 19 of2017 whereby the respondent/petitioner herein is directed to pay subsistenceallowance to the workmen concerned along with interest at the rate of 6 % perannum.2.Parties are referred to as “employer and employees” for the sakeof convenience.3.Complaint ULP No. 19/2017 came to be filed before the IndustrialCourt by respondent-Trade Union on behalf of the employees of petitioner-employer. It is averred in the said complaint that concern employees are the5-WP-12517-2024.odt1 of 10 members of the complainant-Union and that there is challenge to the orderdated 11.01.2017 by which the employees were suspended by the employer.Employees made grievance to the complainant-Union about non payment ofallowances so also their suspension being caused without any sufficient cost. Itis also specifically pleaded in the complaint that the employer has directedemployees to mark attendance at the place of work, which condition accordingto the employees is illegal as it is not supported by the law. There is specificpleading with regard to the non-payment of subsistence allowance with theseaverments. In the complaint prayer was made in Clause No. 19B that the orderof suspension dated 11.01.2017 be declared as illegal and set aside.4. Employer filed written statement denying the locus standi of thecomplainant-Union to file complaint. Apart from this, it is claimed that thecomplainant-Union is not a registered Trade Union nor representing theemployees of the employer. It is alleged by the employer that the employeesare purposely delaying enquiry proceedings, and, therefore, they have no rightto claim any subsistence amount. During the pendency of the complaint,concerned employees were dismissed from service on conducting departmentalenquiry against them. Learned Industrial Court rendered finding that the issueof the legality of suspension order has become redundant, however proceededto direct the employer to pay subsistence allowance along with interest at the5-WP-12517-2024.odt2 of 10
Legal Reasoning
rate of 6 % per annum.5.At the outset, learned senior counsel appearing on behalf ofemployer contended that respondent-Union is not trade union registered underTrade Unions Act and also not representing employees of employer. Accortingto him, on this count alone the complaint deserves to be dismissed. Learnedcounsel for the respondent-Union drew attention of Court to the findingsrecorded by Industrial Court about the payment of of membership fees byemployees and passing of resolution on. He placed on record copy ofregistration certificate of Union under Trade Union’s Act. Perusal of the recordindicates that the findings of Industrial Court with regard to the membership isbased on evidence on record and hence can’t be termed as perverse. Similarly,though it is observed that the witness of Union has not produced registrationcertificate on record but in view of certificate placed before this Court, leavesno room for doubt that respondent-Union is duly registered under TradeUnions Act and represents employees of employer. The objection raised to thecomplaint on these grounds is without substance and hence rejected.6.On merit, learned senior counsel appearing on behalf of thepetitioner-employer submits that the relief granted by the Industrial Courtwithout any prayer being made to that effect and as such the direction is not5-WP-12517-2024.odt3 of 10 sustainable. To support his submission, he placed reliance on the judgment ofHon’ble Supreme Court in case of Manohar Lal Vs. Ugrasen (2010) 11Supreme Court Cases 557 and in case of Akella Lalitha Vs. KondaHanumantha Rao, 2022 SCC OnLine SC 928. By referring to theobservations made by the Hon’ble Supreme Court in these judgments, it iscontended that in absence of any prayer made calling upon the Industrial Courtto direct grant relief of payment of subsistence allowance, no such relief couldhave been granted. In response to the case law cited on behalf of the learnedcounsel for Union, it is contention that those judgments were passed in areference as well as referring to the provisions of Section 10 A of the IndustrialEmployment (Standing Orders) Act, 1946 (for short “the Act”), it is hissubmission that absence of any issue involved in these judgments have noapplication to the same.7.Learned counsel for Union supported the impugned order. Hedraw attention of the Court to the pleadings which clearly indicates about nonpayment of subsistence allowance. It is his submission that in the Labourjurisprudence, principals of pleadings would not apply. According to him,parties were fully conscious of the fact that the Union is seeking direction forthe payment of subsistence allowance which according to him can be reflectedfrom Paragraph 22 of the order wherein the submissions to that effect are duly5-WP-12517-2024.odt4 of 10 recorded by the Industrial Court. It is his submission that Industrial Court hasrightly taken into consideration the fact that there is no payment of subsistenceallowance and by invoking provisions of Section 13 of the MaharashtraRecognition of Trade Unions and Prevention of Unfair Labour Practices Act,1971 (for short “MRTU and PULP Act”), consequential relief has beenrightly granted. To support his submissions, he placed reliance on the judgmentof Bombay High Court in case of Vijaykumar Laxman Kabir Vs. N. R. C.Limited & others 2004 (2) Bom. C. R. 563 and also on the judgment ofBombay High Court in case of Hindustan Level Employees Union Vs.Hindustan Unilever Limited 2024 DGLS (Bom.) 104.8.There cannot be any dispute made with regard to the propositionsought to be canvassed on behalf of the learned counsel for Union that strictrules of pleadings may not apply to the complaint filed under the MRTU andPULP Act. However, at the same time, it cannot be ignored that in the instantcase, there is no relief sought of payment of subsistence allowance. Though,there are pleadings in the complaint with regard to the non payment ofsubsistence allowance so also, the condition imposed being illegal, thesepleadings are made in the complaint in order to substantiate the case of theUnion that the suspension order dated 11.01.2017 is not legal and to supportrelief of quashment thereof. However, as a matter of fact, no subsistence5-WP-12517-2024.odt5 of 10 allowance is claimed therein. Non application of strict rules of evidence, doesnot mean, that the relief which can be asked for by making prayer, need not besought at all.9.As far as powers of the Industrial Court to grant consequentialrelief is concerned, the same cannot be stretched to the extent that the reliefcould be granted, which could have been sought, but not asked for. Section 30of MRTU and PULP Act, which deals with power of Court reads thus :- 30. Powers of Industrial and Labour Courts :-“(1) Where a Court decides that any person named in thecomplaint has engaged in, or is engaging in, any unfairlabour practice, it may in its order -(a) declare that an unfair labour practice has been engagedin or is being engaged in by that person, and specify anyother person who has engaged in, or is engaging in theunfair labour practice;(b) direct all such persons to cease and desist from suchunfair labour practice, and take such affirmative action(including payment of reasonable compensation to theemployee or employees affected by the unfair labourpractice, or reinstatement of the employee or employeeswith or without backwages, or the payment of reasonablecompensation), as may in the opinion of the Court benecessary to effectuate the policy of the Act;(c) where a recognised union has engaged in or is engagingin, any unfair labour practice, direct that its recognitionshall be cancelled or that all or any of its rights under sub-section (1) of section 20 or its right under section 23 shallbe suspended.5-WP-12517-2024.odt6 of 10 (2) In any proceeding before it under this Act, the Court,may pass such interim order (including any temporaryrelief or restraining order) as it deems just and proper(including directions to the person to withdraw temporarilythe practice complained of, which is an issue in suchproceeding), pending final decision:Provided that, the Court may, on an application in thatbehalf, review any interim order passed by it.(3) For the purpose of holding an enquiry or proceedingunder this Act, the Court shall have the same powers as arevested in Courts in respect of -(a) proof of facts by affidavit;(b) summoning and enforcing the attendance of any person,and examining him on oath;(c) compelling the production of documents; and(d) issuing commissions for the examination of witnesses.(4) The Court shall also have powers to call upon any ofthe parties to proceeding before it to furnish in writing, andin such forms as it may think proper, any information,which is considered relevant for the purpose of anyproceedings before it, and the party so called upon shallthereupon furnish the information to the best of itsknowledge and belief, and if so required by the Court to doso, verify the same in such manner as may be prescribed.”This provision entrusts power to Industrial Court and LabourCourt to declare engagement of unfair labour practices and direction toceasation thereof. An affirmative action including payment of compensation,5-WP-12517-2024.odt7 of 10 reinstatement with or without backwages could be passed. This provisions isenabling provision that the relief sought could be modified and in appropriatecases reasonable compensation also could be directed. It however cannot beconstrued to be a power to grant a relief which was capable of being prayed butnot prayed/excluded from relief sought. It is settled law that wheneverparticular relief which was required to be prayed specifically and not prayed, isnot open to be granted by the Court. The reason therefor is that the partyagainst whom such relief is to be granted has not been made aware of suchrelief. At the cost of repetition, even if, the contention of the complainant isconsidered to the effect that there is non payment of subsistence allowance, thesaid contention could be considered for purpose of declaration of order ofsuspension as illegal. In case, specific prayer was made, it was open for theemployer to resist the said prayer and to lead evidence in that regard. Thisopportunity has been lost by employer. There was specific argument advancedbefore the Industrial Court with regard to there being no prayer made for grantof subsistence allowance, during the period of suspension. It was open forcomplainant to add prayer in the complaint. However, complainant has chosennot to do so. 10.Even though it may appear to be technical issue, however it hasbearing on the basic right of party to know what order is sought against it.5-WP-12517-2024.odt8 of 10 Once the employer was never given to know that the Union-employees areseeking direction for payment of subsistence allowance, in absence of suchprayer, it would not be open for the Industrial Court to pass order directingsuch payment. 11.Consequently, impugned judgment and order stands set aside.However, having regard to the fact that there are specific pleadings made bythe complainant with regard to the non payment of subsistence allowance, itwould be in the interest of justice that the Union is permitted to amendcomplaint to incorporate prayer of payment of subsistence allowance andcomplaint is decided a fresh.12.In the result, petition stands allowed in following terms :-i) Impugned order is set aside.ii) Complaint ULP No. 19/2017 is relegated back to theIndustrial Court for decision afresh.iii) Complainant is permitted to amend the complaint toincorporate prayer of payment of subsistence allowance. iv) If parties so desire, said Court to permit them to leadadditional evidence.v) Parties are directed to appear on 30.04.2025 before the5-WP-12517-2024.odt9 of 10 Industrial Court. No separate notice shall be issued to them.vi) Since, complaint is of year, 2017, the same be disposedof in accordance with law within a period of 6 months.(R. M. JOSHI, J.)bsj5-WP-12517-2024.odt10 of 10