Shankar Sadhuji Khedikar vs Maharashtra State Road Transport Corporation

M.S. Deshpande, J.—By this petition under Articles 226 and 227 of the Constitution, the petitioner challenges the order passed by the Industrial Court, whereby the petitioner''s right to come on the time-scale was made operative from 8th September, 1975, when the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short ''Unfair Labour Practices Act''), came into force.

The petitioner was employed as a conductor with the respondent on April 14, 1971. Under Settlement No. 49, dated 25th April, 1956, the petitioner was entitled to be given the time-scale applicable to the post in which he was employed, after the completion of 180 days. Since this relief was not given to the petitioner, he approached the Industrial Court with a complaint u/s 28 of the Unfair Labour Practices Act. His claim was opposed by the respondent, the contention being that though the petitioner had completed 180 days of service which, under Settlement No. 49, would have enabled him to ask for being awarded the time-scale applicable to the post, since the Unfair Labour Practices Act was not in force on 15.10.1971, that being the date on which the petitioner would have been entitled to the benefit, he (petitioner) was not entitled to any relief.

The Industrial Court found that the petitioner had completed 180 days of service which, under Settlement No. 49, dated 25th April, 1956 entitled him to be awarded the time-scale, but since the Unfair Labour Practices Act was not in force on 15.10.1971 but came into force on 8.9.1975, the time-scale could be awarded only from the later date.

A notice before admission was issued to the respondent, and both the learned counsel agreed that rule may be granted and the matter should be heard on the sole question of law which arises for consideration, that question being whether the Unfair Labour Practices Act would apply to a claim made under Item 9 of Schedule IV which refers to failure to implement award, settlement or agreement. u/s 28(1), where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either u/s 5, or as the case may be, u/s 7, of the Act, provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.

The contention on behalf of the respondent was that since the Unfair Labour Practices Act does not have any retrospective operation, a cause of action which had accrued on 15.10.1971, would not come within its purview because the Act itself came into force on 8.9.1975. A Division Bench of this Court in Regional Manager, Maharashtra State Road Transport Corporation, Nagpur v. Regional Secretary, Maharashtra State Road Transport Kamgar Sanghatna, Karanja 1984 LIC 1721. Where under the settlement the Road Transport Corporation assured the Union that it will absorb the workmen of the ex-operators and for non-implementation of this assurance, a complaint was filed on the ground that unfair labour practice was followed by the Corporation, held that the relief claimed by the workers was for an unfair labour practice of a continuing nature and accordingly the occurrence of such unfair labour practice would recur so long as the relevant term of the settlement remained unimplemented. The Division Bench held that the workers had every right to approach the Industrial Court under Item 9 of Schedule IV to the Act. This view was reiterated in Maharashtra State Road Transport Corporation, Bombay v. Maharashtra Motor Kamgar Federation, Nagpur, 1986 LIC 253 It, therefore, follows that the unfair labour practice continued until the settlement remained unimplemented, as in the present case.

With regard to the contention that the Unfair Labour Practices Act does not operate retrospectively, it must be noticed that the right to be brought on time-scale arose on account of the Settlement No. 49, dated 25th April, 1956, on 15.10.1971, when the petitioner had completed the qualifying service of 180 days. This was a right available under the settlement and not a substantive right created by the Unfair Labour Practice Act. What the Act provided was only a forum and the machinery for the enforcement of that right. A single bench of this Court in Narang Hotels (Private) Ltd. v. N.K. Nandapurkar 1984 (1) LLN 329, pointed out that Sub-section (1) of Section 28 of the Act permits filing of a complaint before the competent Court against any person who "has engaged in or is engaging in any unfair labour practice", which clearly indicates that the complaint can be filed if the unfair labour practice is a recurring practice and in such a case even if the commencement of the unfair labour practice is of a date prior to coming into operation of the Act, still the continuance of the same subsequent to the date of the Act enables the aggrieved party to file a complaint. The learned single judge took into consideration the decision of (1) the Calcutta High Court in Birla Brothers Ltd. v. Modak ILR (1948) 2 Cal. 209 ; (2) the Supreme Court in Jahiruddin Vs. K.D. Rathi, Factory Manager, The Model Mills Nagpur Ltd., ; and (3) Workmen of Firestone Tyre and Rubber Company of India (P) Ltd., v. Firestone Tyre and Rubber Company of India (P) Ltd. 1973 1 LLN 278.

In Bharat Singh v. Management of New Delhi Tuberculosis Centre 1986 2 Lab. LJ 217 while considering the provisions of Section 17-B of the Industrial Disputes Act, it was pointed out that u/s 17-B, it is not a case of conferment of a new jurisdiction but the codification in statutory form of a right available to the workmen to get back wages when certain conditions are satisfied, and there are no words in the section to compel the Court to hold that it cannot operate retrospectively. Before Section 17-B was introduced, there was no bar for Courts for awarding wages, though the workmen had no right to claim it, and the section recognises such a right. The Supreme Court, therefore, took the view that Section 17-B applied even to awards passed prior to August 21, 1984, if they had not become final. This endorses the view taken by the learned single judge of this Court in 1984 (1) L.L.N. 329. It is apparent that in the present case also, and industrial dispute could have been raised and the matter taken in reference under the Industrial Disputes Act, if the Unfair Labour Practices Act had not come into force.

The learned judge of the Industrial Court was not right in taking the view that he could allow relief only from 8.9.1975 when the Unfair Labour Practices Act came into force. The direction requires modification, in that, the petitioner would be entitled to all the available benefits to the time-scale, with effect from 15th October, 1971 when he had completed 180 days of service, under Settlement No. 49, dated 25th April, 1956. Rule absolute in these terms. No order as to costs.

Rule made absolute.