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PETITIONER:

HINDUSTAN LEVER LTD.

Vs.

RESPONDENT:

ASHOK VISHNU KATE & ORS.

DATE OF JUDGMENT15/09/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

RAY, G.N. (J)

CITATION:

1996 AIR 285 1995 SCC (6) 326

JT 1995 (6) 625 1995 SCALE (5)400

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

MAJMUDAR. J:

Leave granted.

By consent of learned advocates of the parties, the

appeal is finally heard and is being disposed of by this

judgment.

The short question involved in this appeal centers

round the jurisdiction of the Labour Court functioning under

the Maharashtra Recognition of Trade Unions and Prevention

of Unfair Labour Practices Act, 1971 (hereinafter referred

to as `the Act' for short) regarding entertaining of

complaints filed under Section 28(1) of the Maharashtra Act

in connection with contemplated discharge or dismissal of

the employees alleged to be resorted to by the employer by

way of unfair labour practice, as mentioned in Item 1 of

Schedule IV of the Maharashtra Act. The Labour Court in

which the complaints were filed took the view that such

complaints were not maintainable as the actual orders of

discharge or dismissal were yet not passed by the 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

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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 from continuing

the unfair labour practices complained of and from

terminating the services of the respondents. The Labour

Court passed an ex parte injunction restraining the

employer-company from terminating the services of the

respondents.

The employer-company filed its written statements in

these complaints and among others it was contended that

complaints themselves were not maintainable and were

premature and the Labour Court had no jurisdiction to

proceed with such complaints as jurisdiction of the Labour

Court could not be invoked under Item 1 of Schedule IV of

the Maharashtra Act as long as the proceedings commenced by

the employer-company were not terminated by orders of

discharge or dismissal of the concerned respondents. The

employer-company also resisted the complaints on merits.

The Labour Court by its order dated August 10, 1989,

upheld the preliminary objection of the employer-company and

held that the complaints were not maintainable at that

stage. The Labour Court followed the decision of the learned

Single Judge of the High Court sitting at Nagpur in the case

of Divisional Commissioner, M.S.R.T.C. vs. Presiding Officer

Industrial Court of Maharashtra, Nagpur & Anr. (1989 Mah.

L.J. 798), which had taken a similar view.

The respondent-workmen filed Writ Petition No. 2286 of

1989 under Article 226 of the Constitution of India. The

learned Single Judge of the High Court summarily dismissed

the same on August 21, 1989.

The respondents carried the matter before the Division

Bench of the High Court in appeal, being Appeal No. 952 of

1989. The Division Bench consisting of M.C. Pendse and S.N.

Kapadia, JJ. allowed the said appeal by its decision dated

March 6, 1992, wherein Pendse, J. speaking for the Division

Bench, took the view that the respondents' complaints were

not premature and the Labour Court had jurisdiction to

entertain such complaints filed before the actual orders of

dismissal or termination were passed by the employer. The

order dated August 10, 1989, passed by the Presiding

Officer, First Labour Court, Bombay, was set aside and the

proceedings were remitted back to the First Labour Court,

Bombay for disposal of the complaints on merits.

The employer-company filed Special Leave Petition (C)

No. 9740 of 1992 in this Court challenging the aforesaid

decision of the Division Bench of the High Court. During the

pendency of this special leave 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

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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 discharge orders, as the

case may be, and that the Labour Court had no jurisdiction

under the Maharashtra Act to proceed with such premature

complaints. In this connection, the learned counsel

submitted that a mere look at Item 1 of Schedule IV shows

that the complaints of unfair labour practice in connection

with the activities mentioned therein on the part of the

employer necessarily contemplated final discharge or

dismissal orders. They submitted that Section 28(1) lays

down the period of limitation for filing complaints before

the Labour Court. The said period has to run from the date

of alleged occurrence and, therefore, the alleged unfair

labour practice must occur by way of dismissal or discharge

before such complaint can be filed. It was next contended

that though the Act deals with prevention of unfair labour

practices, nowhere in the body of the Act in any of the

sections the word `Prevention' is mentioned. According to

the learned counsel, the Division Bench of the High Court

was in error in taking the view that unfair labour practice

is not a penal offence under the Act. Section 48 of the

Maharashtra Act made such unfair labour practice penal. That

the Labour Court under Section 30(2) could pass appropriate

interim order restraining the employer from enforcing on

calling upon the employer to withdraw temporarily the

alleged unfair labour practice of dismissal or discharge of

employee and it was not as if after discharge or dismissal,

such interim relief could not be granted in an appropriate

case by the Labour Court. Reliance was also placed on the

decision of this Court in the case of Chanan Singh vs.

Registrar, Co-operative Societies, Punjab & Ors. (1976 (3)

SCR 685) for submitting that even though a chargesheet is

served by the employer on the concerned employee, there is

still a possibility that it may not actually culminate into

any discharge or dismissal and, therefore, complaint against

proposed dismissal or discharge would be premature.

On the other hand, the learned counsel for the

respondent-employees vehemently submitted that the

Maharashtra Act itself is enacted for prevention of unfair

labour practices, as enumerated in the Schedules and such

labour practices on the part of the employers or the trade

unions of employees, as mentioned in Schedules II, III and

IV, could be prevented in appropriate cases by the concerned

Courts functioning 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

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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 prevention of unfair labour practices. This was

sought to be achieved by the Maharashtra Legislature by

enacting the provisions of the Maharashtra Act and

consequently the interpretation placed by the Division Bench

of the High Court on the relevant provisions of the Act and

the final conclusion to which it reached deserve to be

upheld.

OUR CONCLUSIONS AND THE REASONS FOR THE SAME

--------------------------------------------

Having given our anxious consideration to the rival

contentions, we have reached the conclusion that the

decision of the Division Bench of the Bombay High Court

taking the view that complaints could be filed by the

workmen apprehending discharge or dismissal by way of unfair

labour practice as contemplated by the relevant clauses of

Item 1 of Schedule IV of the Maharashtra Act, even prior to

the actual passing of orders of discharge or dismissal is

well sustained on the scheme of the Act. We now proceed to

elaborate our reasons for the aforesaid conclusion.

Before we deal with the relevant provisions of the

Maharashtra Act, it would be necessary to note that in the

State of Maharashtra, prior to the passing of the

Maharashtra Act, two Acts governing the relations between

the employers and the employees in industries were already

holding the field. One Act was the Bombay Industrial

Relations Act, 1946 (`B.I.R. Act' for short) which applied

to certain notified industries under the Act. Various

protections were given under the B.I.R. Act to the workmen

covered by the said Act. But there was no provision

regarding prevention of unfair labour practices either on

the part of the employers or on the part of the unions of

employees. There was also a Central Act, Industrial Disputes

Act, 1947 (`I.D. Act' for short) applicable to industries

which were not covered by the B.I.R Act. The Maharashtra Act

was passed by the legislature on February 1, 1972, being

Maharashtra Act 1 of 1972. By that time industries which

were covered by the I.D. Act, which was a Central Act, also

did not have the benefit of any provision regarding

prevention of unfair labour practices. Under the I.D. Act

provision was made for reference by an appropriate

Government of any industrial dispute between the employers

and the employees for adjudication of competent Industrial

or Labour Court, as the case may be. The "Industrial

Dispute" as defined by Section 2(k) of the I.D. Act could be

referred for adjudication to the competent 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

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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 the time the Maharashtra Act saw

the light of the day. It is, of course, true that by an

amendment to the Industrial Disputes Act Chapter V(c) was

added w.e.f. August 2, 1984, which deals with unfair labour

practice. The "Unfair Labour Practice" as defined by the

I.D. Act in Section 2(ra) means `any of the practices

specified in the Fifth Schedule'. When we turn to the Fifth

Schedule to the I.D. Act, we find the cataloguing of unfair

labour practices on the part of the employers, the trade

unions of the employers and on the part of the workmen and

trade unions of workmen, which are almost parimateria with

lists of unfair labour practices on the part of the

employers, on the part of the trade unions and general

unfair labour practices on the part of the employers as

found in Schedules II, III and IV of the Maharashtra Act.

However, even the aforesaid amended provisions of the I.D.

Act concerning unfair labour practice nowhere provide for

any reference of industrial dispute in connection with such

unfair labour practice on the part of the employers which

can entitle the workmen or a body of workmen to seek a

reference for adjudication or for its prevention by any

competent court under the I.D. Act, and all that a workman

can do is to wait till the order of discharge or dismissal

is passed and then he can raise a dispute under Section 2(A)

in connection with his dismissal or discharge and if such

dispute is referred by the appropriate Government for

adjudication of the Labour Court which is entitled to

adjudicate upon such dispute as per the residuary Item 6 of

Schedule II to the I.D. Act, then in such a dispute it can

be shown by the workman that his actual dismissal or

discharge was a result of unfair labour practice as laid

down by clause 5 of part 1 of the Fifth Schedule to the I.D.

Act. However, there is no provision for preventing any

proposed discharge or dismissal by way of unfair labour

practice on the part of the employer as per the statutory

scheme of the I.D. Act, even after the insertion of Chapter

V(c) in that Act. On the other hand, more than a decade

before the aforesaid amendment was brought in the I.D. Act,

which fell short of providing for prevention of unfair

labour practice, the Maharashtra Legislature as early as in

1972 enacted the Maharashtra Act providing for such

prevention. Similarly as noticed earlier the B.I.R. Act also

did not offer 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

-----------------------------

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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 unions

and for enforcing the provisions

relating to unfair practices; and to

provide for matters connected with the

purposes aforesaid.

WHEREAS, by Government Resolution,

Industries and Labour Department, No.

IDA. 1367-LAB-II, dated the 14th

February 1968, the Government of

Maharashtra appointed a Committee called

"the Committee on Unfair Labour

Practices" for defining certain

activities of employers and workers and

their organisations which should be

treated as unfair labour practices and

for suggesting action which should be

taken against employers or workers, or

their organisations, for engaging in

such unfair labour practices;

AND WHEREAS, after taking into

consideration the report of the

Committee Government is of opinion that

it is expedient 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 or according recognition to

trade unions and for enforcing

provisions relating to unfair practices;

and to provide for matters connected

with the purposes aforesaid; It is

hereby enacted in the Twenty-second Year

of the Republic of India as follows:-

............."

The preamble of the Act clearly indicates that the

Maharashtra Act is brought on the statute book with the

avowed purpose of regulating the activities of trade unions

and for preventing certain unfair labour practices both on

the part of unions of employees as well as the employers. As

laid down by Section 2(3) of the Act, the Act has to apply

to the industries to which B.I.R. Act, for the time being

applies and also to any industry as defined in clause (j) of

Section 2 of the I.D. Act and also to the State Government

which in relation to any industrial dispute concerning such

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industry is the appropriate Government under that Act. Thus,

the Act sought to supplement and cover the field for which

the concerned industries governed by the then I.D. Act and

B.I.R. Act did not get any coverage and that field was

obviously amongst others the field pertaining to prevention

of unfair labour practices as defined by the Act.

"Unfair labour practices" 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

allegations of absence without leave;

(f) in utter disregard of the

principles of natural justice in the

conduct of domestic enquiry or with

undue haste :

(g) for misconduct of a minor or

technical character, without having any

regard to the nature of the particular

misconduct or the past record of service

of the employee, so as to amount to a

shockingly disproportionate punishment."

A mere look at Item 1 of Schedule IV shows that it

would be a general unfair labour practice on the part of the

employer to discharge or dismiss employees on any of the

grounds mentioned in clauses (a) to (g) of this Item. On

this aspect there is no dispute between the parties. The

moot question is whether the sweep of the item can cover any

of the alleged general unfair labour practices on the part

of the employer, before the employer concerned actually

discharges or dismisses the employee on any of the grounds

enumerated in clauses (a) to (g). Let us take an

illustration to see how this item operates. If an employer

discharges or dismisses an employee by way of victimisation

it would be a complete unfair labour practice on his part as

contemplated by clause (a) of Item 1 of Schedule IV. As we

have seen above, the Act is enacted with a view to prevent

such unfair labour practice. Therefore, the question

squarely arises as to how such an unfair labour practice of

discharge or dismissal of an employee by way of

victimisation can be prevented. If it is to be prevented, it

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has to be prevented from taking effect or getting completed.

Therefore, the intervention of the Labour Court can be

sought where the concerned general unfair labour practice on

the part of the employer to discharge or dismiss an employee

by way of victimisation has not resulted into its

culmination but it is in pipeline or process. Under the

standing orders governing the concerned industries, before

an employee can be discharged or dismissed on the ground of

any misconduct, departmental enquiry has to be held.

Consequently, taking the initial step towards the direction

of discharging or dismissing of any employee on the ground

of any misconduct by issuing a chargesheet can be said to be

the first action taken by the employer towards such ultimate

discharge or dismissal of an employee. It can then be said

that the process of alleged unfair labour practice on the

part of the employer to discharge or dismiss an employee 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 as the

said term is not defined by the Maharashtra Act.

In Concise Oxford Dictionary, New Seventh Edition,

Oxford University Press, at page 1124, one of the meanings

of the word "to" is mentioned as under:-

"In the direction of (place, person,

thing, condition, quality, etc.; with or

without implication of intention or of

arrival..."

In Collins English Dictionary, at page 1525, one of the

meanings of the word "to" is as under:-

"used to indicate the destination of the

subject or object of an action: he

climbed to the top."

In Words and Phrases, Permanent Edition, Volume 41A, at

page 418, one of the meanings of the word "to" is amplified

as under:-

"The word "to" means indicating anything

regarded as a terminal point or limit in

the direction of which there is movement

and at which there is arrival or in the

direction of which there is movement or

tendency without arrival."

In Stroud's Judicial Dictionary, 5th Edition, volume 5,

at page 2646, one of the meanings of the word "to" is

mentioned as under:-

"(3) "To" wills often mean "towards."

The plaintiff effected a marine policy,

subject to rules one of which was that

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ships were not to sail from any port on

the east coast of Great Britain "to" any

port in the Belts between December 20

and February 15. The plaintiff's vessel

sailed on February 8 for a port in the

Belts, and was lost; held, that the rule

in question was a warranty and not an

exception; and that the word "to" in the

rule meant "towards" and not "arriving

at" (Colledge v. Harty 6 Ex. 205)

(4) "To or towards": see R. v. M'Carthy

[1903] 2 Ir. R. 156, cited INTIMIDATE."

It becomes, therefore, obvious that general unfair

labour practice on the part of the employer to discharge or

dismiss the employee on any of the grounds listed in clauses

(a) to (g) of Item 1 of Schedule IV would include any step

towards or in the direction of ultimate discharge or

dismissal of the employee on that ground and even before

such discharge or dismissal is finally arrived at. It is not

possible to accept the contention of the learned counsel for

the appellant that discharge or dismissal of any employee

would only mean the confirmed act of discharge or dismissal

on any of these grounds and not a penultimate step taken by

the employer concerned in that direction on that ground.

Therefore, on the express language of Item 1 of Schedule IV

the general unfair labour practice 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 punishment given is shockingly disproportionate to

the charge and that such an eventuality would arise only

when the punishment in question has already been inflicted.

Now it is obvious that at the stage when such a shockingly

disproportionate punishment is given, this clause would

certainly get attracted, but that does not mean that it

could not be demonstrated even earlier, if there are facts

available in a case, that for a trifle or mere minor or

negligible misconduct, the employer proposes to discharge or

dismiss the employee.

The learned counsel for the respondents has rightly

given an example where clause (g) of Item 1 of Schedule IV

can apply even prior to the final order of discharge or

dismissal of an employee. It was submitted that if the

chargesheet itself alleges that the worker-employee did not

get up when the Officer entered his office and, therefore,

it was proposed to discharge the employee, even mere reading

of the chargesheet can be pressed in service for submitting

that the proposed enquiry is for imposing a punishment

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shockingly disproportionate to the misconduct alleged in the

chargesheet. Therefore, it is not as if when such a

grievance is made, the Labour Court cannot be approached for

preventing such an unfair labour practice from getting

culminated and that the workman is to wait till such

shockingly disproportionate punishment actually comes to be

imposed. Then there would be nothing left to be prevented.

It would be like bolting the doors of the stable after the

horses have fled. We, therefore, hold that on the express

language of Item 1 of Schedule IV complaint can be filed for

the alleged unfair labour practice which is in the offing

and towards which a firm step is taken by the employer. It

is in the light of the aforesaid scheme of Item 1 of

Schedule IV that we have to turn to the remaining relevant

sections of the Act.

Section 27 lays down as under:-

"No employer or union and no employees

shall engage in any unfair labour

practice."

Thus there is total embargo on the unions of the employees

as well as the employees and also on the employer on

engaging in any unfair labour practice. Once it is found

that Item 1 of Schedule IV covers general unfair labour

practices on the part of the employer consisting of not only

final discharge or dismissal of employee on any of the

grounds mentioned in Item 1 but also any action taken by

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 mentioned in

Section 27 will cover all stages from the beginning to the

end, when the process which is initiated by the concerned

employer or the union in connection with the alleged unfair

labour practice starts and ultimately terminates.

The next Section which is relevant is Section 28(1) of

the Maharashtra Act. Section 28 was pressed in service by

both the sides for supporting their respective contentions.

Section 28(1) contemplates types of complaints which can be

filed under the Act. So far as Item 1 of Schedule IV is

concerned, the competent Court as per Section 7 of the Act

will be the Labour Court as the said section provides that

it shall be the duty of the Labour court to decide

complaints relating to unfair labour practices described in

Item 1 of Schedule IV and to try offences punishable under

this Act, and the complaints regarding the rest of the

unfair labour practices can be dealt with by the Industrial

Court under Section 5.

As per Section 28(1) any complaint regarding the

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general unfair labour practice on the part of the employer

to discharge or dismiss employee on the grounds mentioned in

Item 1 of Schedule IV can be filed before the Labour Court.

Such a complaint can cover both types of grievances against

the employer; (1) that he has engaged in any unfair labour

practice and (2) or he is engaging in any unfair labour

practice. The learned counsel for the appellant submitted

that though the Act is enacted with a view to prevent such

unfair labour practices, there is no whisper about such

prevention in any of the operative sections of the Act. This

submission cannot be accepted in the light of the express

language of section 28(1) and the types of complaints

contemplated by it, as aforesaid. As per Section 28(1) of

the Maharashtra Act an employee can file a complaint against

the employer on the ground that the employer has engaged in

unfair labour practice to discharge or dismiss employee by

way of victimisation etc. For the purpose of illustration,

we may take clause 1 of Item 1 of Schedule IV to highlight

the scheme of this section. If an employee files a complaint

before the Labour Court alleging that the employer has

engaged in unfair labour practice to dismiss or discharge

him by way of victimisation, it would contemplate a

completed act, namely, an order of discharge or dismissal

that might have been passed, because the term "has engaged"

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 terminology used by the

Legislation "or is engaging in any unfair labour practice"

would be rendered totally redundant and otios, as such a

completed action would already stand covered by the earlier

phrase "has engaged in any unfair labour practice". Similar

words are found in Section 30(1) which deals with powers of

the Courts and provides that where the Court decides that

any person named in the complaint has engaged in, or is

engaging in, any unfair labour practice, it may by its order

give relief as mentioned in clauses (a), (b) and (c) of that

sub-section. A conjoint reading of Section 28(1) and Section

30(1) clearly shows that complaint can be filed for the

alleged unfair labour practice as contemplated in Item 1 of

Schedule IV on any of the grounds mentioned therein, both at

the stage where such final orders of discharge or dismissal

are passed on the concerned alleged grounds and also at the

stages prior to such final orders, once the employer is

shown to have taken a firm step in that direction by

initiating departmental enquiries with a view to ultimately

discharge or dismiss the employee on any of the alleged

grounds and such enquiries are presently in progress or are

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presently in offing. Then the employer can be said to be

presently engaging in any such unfair labour practice. It

becomes obvious that the twin phrases `has engaged' and `is

engaging in' indicate not only the finished, complete or

continuous action but also an incomplete continuous action.

In this connection, we may profitably look at what is

said in Black's Law Dictionary, 6th Edition, at page 528,

about the term "Engage", which reads as under:-

"To employ or involve one's self; to

take part in; to embark on."

In Stroud's Judicial Dictionary, 5th Edition, at page

847, the term "engaged in discharging" has been dealt with

as under:-

"A lighter or craft is "engaged in

discharging" ballast or goods, within an

exemption from dock dues, if she goes to

the place of discharge in the dock with

the real intention of discharging there,

although, from the place getting too

full to take the ballast or goods, the

vessel has to depart without making any

discharge (London & India Docks Co. v.

Thames Steam Tug, etc., Co. (1909) A.C.

15)"

It becomes, therefore, obvious that if an employer is

alleged to be engaged in discharging any employee then even

before the actual order of discharge is passed he can 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 the final orders of discharge or

dismissal are passed by the employer and are challenged on

any of the grounds mentioned in Item 1 of Schedule IV. It is

not possible to agree with this contention. As we have

already seen earlier, Item 1 of Schedule IV would cover in

the sweep of general unfair labour practice on the part of

the employer even the initiation of proceedings or taking

any other firm step like suspension, towards discharge or

dismissal of the employee concerned, which can be challenged

on the grounds mentioned in Item 1 of Schedule IV. Such

initiation of proceedings or firm steps themselves would be

the occurrence of the alleged unfair labour practices and

would give a cause of action to the complainant to file the

complaint under Section 28(1) within the period of

limitation as laid down therein. It is not as if that the

occurrence of unfair labour practice can be only of one

type, that is, the final order of discharge or dismissal as

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assumed by the learned counsel for the appellant. The nature

of the order which the Court can pass on such complaint is

indicated by clauses (a), (b) and (c) of Section 30(1),

which read as under:-

"30.(1) Where a Court decides that any

person named in the complaint has

engaged in, or is engaging in, any

unfair labour practice, it may in its

order -

(a) declare that an unfair practice has

been engaged in or is being engaged in

by that person, and specify any other

person who has engaged in, or is

engaging in the unfair labour practice;

(b) direct all such persons to cease and

desist from such unfair labour practice,

and take such affirmative action

(including payment of reasonable

compensation to the employee or

employees affected by the unfair labour

practice, or reinstatement of the

employee or employees with or without

back wages, or the payment of reasonable

compensation), as may in the opinion of

the Court be necessary to effectuate the

policy of the Act;

(c) where a recognised union has engaged

in or is engaging in, any unfair labour

practice, direct that its recognition

shall be cancelled or that all or any of

its rights under sub-section (1) of

Section 20 or its right under section 23

shall be suspended."

Even this provision when read with Item 1 of Schedule IV

shows that after adjudication the Labour Court can declare

that the concerned employer not only has engaged in unfair

labour practice, but is being 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 employee,

the Labour Court in the complaint regarding such final order

can pass interim orders of temporary relief or restraining

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order. Still it would not rule out the possibility on the

part of the Labour Court of passing an interim order pending

the domestic enquiry if any of the grounds mentioned in Item

1 of Schedule IV is effectively pressed in service by the

employee against the employer. It is obvious that when the

final order of discharge or dismissal is passed and if it is

found to be a result of unfair labour practice as mentioned

in clauses (a) to (g) of Item 1 of Schedule IV, it is to be

quashed and reinstatement is to be ordered by way of

mandatory relief. In such a case there would be no occasion

of granting interim relief by way of prohibitory order or a

restraining order, as contemplated by sub-section (2) of

Section 30. Such a restraining order can be passed in a case

where the complaint is filed at a stage where the final

orders of discharge or dismissal are not passed on any of

the grounds mentioned in Item 1 of Schedule IV. If such a

complaint is ruled out the provisions of Section 30(2) would

be rendered redundant and otios. When we keep in view the

fact that as per Section 7 of the Maharashtra Act, all the

complaints pertaining to Item 1 of Schedule IV can be filed

only before the Labour Court and no other complaint

regarding unfair labour practice can be filed before the

Labour Court, and once the Labour Court is given the powers

in appropriate cases of passing interim relief of

restraining orders as per Section 30(2) it would clearly

indicate the legislative intention that complaints regarding

the proposed dismissal or discharge on any of the grounds

mentioned in Item 1 of Schedule IV could be filed before the

Labour Court. In such complaints the Labour Court in

appropriate cases, in exercise of its powers under Section

30 (2) can issue interim orders with a view to preventing

such alleged unfair practices from getting fructified. Thus

Section 30(2) also highlights the legislative intent of

providing an effective machinery to prevent the finalisation

of the alleged unfair practices which are required to be

nipped in the bud. If the orders of the Court whether final

on interim are not complied with by the party against whom

such orders are passed, it can be prosecuted under sub-

section (1) of Section 48, which lays down as under :

"48.(1) 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 :

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"Prohibition of unfair labour practice.

- No employer or workman or a trade

union, whether registered under the

Trade Unions Act, 1926 (16 of 1926), or

not, shall commit any unfair labour

practice."

When we keep the relevant provisions of the Industrial

Disputes Act concerning unfair labour practices in view and

compare these provisions with the provisions of the

Maharashtra Act, a clear difference becomes obvious. Section

25-T of the Industrial Disputes Act prohibits an employer or

workman or a trade union from committing any unfair labour

practice. While so far as Section 27 of the Maharashtra Act

is concerned, it prohibits an employer or union or employee

from engaging in any unfair labour practice. Consequently

the prohibition under the Industrial Disputes Act is against

the commission of unfair labour practice which may include

the final acts of such commission. While Section 27 of the

Maharashtra Act prohibits the concerned party even from

engaging in any unfair labour practice. The word `engage' is

more comprehensive in nature as compared to the word

`commit'. But even that apart, Section 25-U provided for

penalty for committing unfair labour practice and mandates

that whoever is guilty of any unfair labour practice can be

prosecuted before the competent court on a complaint made by

or under the authority of an appropriate Government under

Section 34(1) read with Section 25-U of the Industrial

Disputes Act. So far as the Maharashtra Act is concerned,

there is no direct prosecution against a party guilty of

having engaged in any unfair labour practice. Such a

prosecution has first to be preceded by an adjudication by a

competent court regarding such engagement in unfair labour

practice. Thereafter, it should culminate into a direction

under Section 30(1)(b) or it may be a subject matter of

interim relief order under Section 30(2). It is only

thereafter that prosecution can be initiated against the

concerned party disobeying such orders of the Court as per

Section 48(1). Consequently, it cannot be said that the

Division Bench of the Bombay High Court was not right when

it took the view that the act of engaging in any unfair

labour practice by itself is not an offence under the

Maharashtra Act while such commission of unfair labour

practice itself is an offence under the Industrial Disputes

Act. However, this aspect is not much relevant for deciding

the controversy with which we are concerned.

As we have discussed 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

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appreciate how a discharge or dismissal of an employee by

way of victimisation can be prevented after such discharge

or dismissal has already taken place. Once such an unfair

labour practice is completed and if final order is to be set

aside it would amount to curing the melody rather than

preventing it. As the saying goes `prevention is better than

cure', and that is the very purpose of the Act. Or in other

words, prevention of commission of such unfair labour

practice is the heart of the Act. The interpretation tried

to be put by the learned counsel for the appellant on the

relevant provisions of Item 1 of Schedule IV would result in

stultifying the very purpose and scope of the Act.

We may also keep in view the fact that prevention of

unfair labour practice, as per the Act, is aimed not only

against the employers, but also against the employees and

their trade unions, if they are alleged to engage themselves

in any of the unfair labour practice mentioned in Schedule

III. Let us take illustrations of unfair labour practice on

the part of the trade unions as mentioned in Items 5 and 6

of Schedule III which read as under:

"5. To stage, encourage or instigate

such forms of coercive actions as

willful "go slow" squatting on the work

premises after working hours or "gherao"

of any of the members of the managerial

or other staff.

6. To stage demonstrations at the

residences of the employers or the

managerial staff members."

It becomes obvious that if an employer files a complaint

before the Industrial Court under Item 5 or 6 of Schedule

III that the Union is seeking to stage, encourage on

instigate such forms of coercive actions as willful `go

slow' or seeks to demonstrate at the residence of employers

and if such an action is to be prevented a complaint has to

be filed before the actual demonstration takes place or

actual `go slow' policy is resorted to. Once such an action

takes place there would remain no occasion to prevent such

an action in good time. Consequently, on the same lines it

cannot be said that unfair labour practice on the part of

the employer also cannot be prevented till the actual unfair

labour practice gets committed by him. We have also to keep

in view that the Maharashtra Act is a social welfare

legislation and in interpreting such a welfare legislation,

such a construction should be placed on the relevant

provisions which effectuates the purpose for which such

legislation is enacted and does not efface its very purpose

of prevention of unfair labour 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

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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 linguistic considerations.

In one of the cases cited before us,

that is, Surendra Kumar Verma v. Central

Government Industrial Tribunal-cum-

Labour Court we had occasion to say.

Semantic luxuries are misplaced in

the interpretation of "bread and butter"

statutes. Welfare statutes must, of

necessity, receive a broad

interpretation. Where legislation is

designed to give relief against certain

kinds of mischief, the Court is not to

make inroads by making etymological

excursions."

Francis Bennion in its `Statutory Interpretation'

Second Edition, has dealt with the Functional Construction

Rule in part XV of his book. The nature of purposive

construction is dealt with in Part XX at page 659 thus:

"A purposive construction of an

enactment is one which gives effect to

the legislative purpose by -

(a) following the literal meaning of

the enactment where that meaning is in

accordance with the legislative purpose

(in this Code called a purposive-and-

literal construction), or

(b) applying a strained meaning where

the literal meaning is not in accordance

with the legislative purpose (in the

Code called a purposive-and-strained

construction)."

At page 661 of the same book, the author has considered the

topic of Purposive Construction in contrast with literal

construction. The learned author has observed as under:

"Contrast with literal construction

Although the term `purposive

construction' is not new, its entry into

fashion betokens a swing by the

appellate courts away from literal

construction. Lord Diplock said in 1975:

`If one looks back to the actual

decisions of the [House of Lords] on

questions of statutory construction over

the last 30 years one cannot fail to be

struck by the evidence of a trend away

from the purely literal towards the

purposive construction of statutory

provisions'. The matter was summed up by

Lord Diplock in this way-

"... I am not reluctant to adopt a

purposive construction where to apply

the literal meaning of the legislative

language used would lead to results

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which would clearly defeat the purposes

of the Act. But in doing so the task on

which a court of justice is engaged

remains one of construction, even where

this involves reading into the Act words

which are not expressly included in it."

Following the aforesaid rule of construction,

therefore, we must hold that the interpretation of Item 1 of

Schedule IV of the Maharashtra Act as canvassed 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 writ petition under Articles

226 and 227 would be premature as there would be no

grievance of punitive action which can be ventilated in the

Court. This decision was based on the general principle that

against mere show cause notice, writ petition would be

premature. The ratio of that decision cannot be of any

assistance for interpreting the express language of Item 1

of Schedule IV of the Maharashtra Act read with its other

relevant provisions, which are meant to prevent the

commission of unfair labour practice by arming the

appropriate Courts with jurisdiction to look into such

complaints. For all these reasons, therefore, it must be

held that the Division Bench of the High Court was perfectly

justified in taking the view that a contemplated action for

dismissal or discharge of an employee on any of the grounds

mentioned in Item 1 of Schedule IV of the Maharashtra Act

could be made the subject-matter of complaint before the

Labour Court under Section 28(1) of the Maharashtra Act. We

have to keep in view the fact that the Maharashtra Act is in

the field since more than two decades and even a Full Bench

of the Industrial Court, Maharashtra by its unanimous

decision dated September 28, 1984 had taken the same view

and on that basis numerous complaints were entertained by

the Labour Courts in Maharashtra over decades. It was only

when a learned Single Judge of the High Court sitting at

Nagpur, by his decision dated April 27, 1989 struck a

discordant note that the present controversy cropped up. In

our view, no fault can be found with the reasoning adopted

by the Division Bench of the Bombay High Court for

overruling the said contrary decision of the learned Single

Judge of the Bombay High Court sitting at Nagpur in Writ

Petition No. 2607 of 1988.

Mr. Pai, learned senior counsel for the appellant, also

argued that Item 1 of Schedule II refers to the threat given

by the employer to discharge or dismiss the employees if

they join the union. Thus, even a threat is considered to be

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an unfair labour practice as per this Item. While, the

unfair labour practice mentioned in Item 1 of Schedule IV

does not cover any threat but actual order of discharge or

dismissal. It is not possible to agree. The reason is

obvious. A mere threat to discharge or dismiss an employee

if he joins a union by itself may be an unfair labour

practice as per Item 1(a) of Schedule II though the 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 simplicitor

threat would not get covered by Item 1 of Schedule IV. It

would also not be covered by Item 1(a) of Schedule II, as it

is not a threat to discharge or dismiss an employee if he

joins a union. For the purpose of attracting Item 1 of

Schedule IV, apart from mere threat, some concrete step like

starting departmental enquiry has to be taken by the

employer before such an action can be brought in challenge

by the concerned employee on any of the grounds mentioned in

Item 1 of Schedule IV. Consequently, merely because the

legislature has not repeated the terminology of mere threat

while enacting Items of Schedule IV it would not mean that

before the final order of discharge or dismissal is passed

on any of the grounds contemplated by Item 1 of Schedule IV,

and only first step is taken in that direction, the unfair

labour practice to discharge or dismiss such employee on any

of these grounds mentioned in Item 1 of Schedule IV cannot

be said to have taken place, or on that basis the complaint

would be premature, as submitted by Shri Pai, learned senior

counsel for the appellant.

At this stage, we may also briefly note some of the

additional contentions found in the written submissions

filed on behalf of the appellant and the intervenors. In the

written submissions filed on behalf of the intervenors it is

contended that the infinitive "to", as mentioned in various

clauses of Item 1 of Schedule IV and in other Items of the

same Schedule and also in other Items of Schedules II and

III, would indicate only completed action done by the

concerned party. It is not possible to agree with this

contention. As we have discussed earlier, the word "to"

would include any action towards the final goal of the

action. Schedule IV, as noted earlier, speaks about the

general unfair labour practice on the part of employers.

Therein barring Item no. 9, everywhere we find the user of

the Infinitive. Same is the case with the wording of

Schedule II barring Item No. 6 and the wording of Schedule

III. While dealing with this aspect, a Full Bench of

Industrial Court of Maharashtra, in its decision in Revision

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Application (ULP) No. 2 of 1983, speaking through its

learned Member Gawande, has made the following observations

in paras 11 to 13, which we wholly approve:

"....The Infinitive with or without

adjuncts may be used, like a Noun. When

the infinitive is thus used, like a

Noun, it 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 Tense is Present

Indefinite. (2) I am speaking - The Verb

shows that the action is mentioned as

incomplete or continuous, that is, as

still going on. Here the Tense is

Present Continuous. (3) I have spoken -

The Verb shows that the action is

mentioned as finished, complete or

perfect at the time of speaking. Here

the Tense is Present Perfect. (4) I have

been speaking - The Verb shows that the

action is going on continuously, and not

completed at this present moment. Here

the Tense is Present Perfect Continuous.

12. Against the background of the above

when we read Item 1 of Schedule IV to

the Act, text of which has been already

reproduced, it becomes evident that Item

1 starts with the phrase - To discharge

or dismiss employees. Thereafter we get

as many as seven sub-items (a) to (g).

If we were to put only the Literal

Construction on the entire wording of

Item 1 of Schedule IV, it becomes clear

that in a given case if the alleged

unfair labour practice is that of

discharge or dismissal of the employee

under all the sub-items i.e. from (a) to

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(g) or either of them, the Labour Court

has jurisdiction to entertain such a

complaint under Section 28 of the Act.

In adverting to the Literal Construction

and in accepting the interpretation

flowing therefrom, it becomes clear that

the action contemplated on the part of

the employer here is an action complete

in itself. In other words, if the

employer were to discharge or dismiss an

employee under all the aforesaid sub-

items or either of them, the Labour

Court has jurisdiction to entertain a

complaint. Implicit in this is the fact

that the employer-employee relationship

is severed by an order of discharge or

dismissal, before the lodging of the

complaint. That such a complaint will

lie, that such a complaint is competent

and that the Labour Court has

jurisdiction to entertain such a

complaint are points in respect of which

the contenders before us do not join

issue.

13. However, the question posed for the

determination of the Full Bench is wide.

After taking into consideration the

interpretation-aspect as also the

grammer-aspect, I am of the view that it

will not be proper to put a mere Literal

Construction on the wording of Item 1 of

Schedule IV to the Act. I have no doubt

in my mind in observing that here the

language is not plain. It does not admit

of but one meaning. Therefore, one would

be justified in adverting 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

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not possible to agree with the written submission on behalf

of the intervenors that only completed actions are

contemplated by the concerned clauses of Item 1 of Schedule

IV. They, on the contrary, suggest that complaint can be

filed not only when the final act of unfair labour practice

is committed, but even at a stage where any firm action is

taken towards reaching the final goal of discharging or

dismissing an employee on any of the grounds mentioned in

clauses (a) to (g) of Item 1 of Schedule IV. So far as the

other items of Schedule IV are concerned, it is difficult to

appreciate how a complaint cannot be filed if the concerned

employer has taken a firm step towards the ultimate object

of completing the alleged unfair labour practice as

mentioned in Items 2 to 10 of the said Schedule.

Reliance placed on the Whisper University Law

Dictionary defining the term "dismiss" also is of no avail

as though the word "dismiss" may indicate performance of a

completed action, any unfair labour practice to dismiss, as

discussed earlier, would include any firm step or attempt

made towards the ultimate goal of dismissing the concerned

workman.

Submission made on the scheme of Section 30(2) to the

effect that interim order can be passed in connection with

the practice complained of also cannot advance the case of

the appellant for the simple reason that if the practice

complained of is of any firm step taken by the employer

towards the ultimate object of dismissing or discharging the

employee on any of the grounds covered by clauses (a) to (g)

of Item 1 of Schedule IV, interim relief can be granted in

connection with such practice complained of and would not

mean that till the practice gets fructified and translated

into final act of dismissal or discharge, the Labour Court

cannot pass appropriate interim relief orders under Section

30(2) as submitted in the written submissions.

We may also briefly refer to the summary of arguments

by Shri. G.B. Pai on behalf of the appellant as filed on

4.9.1995. Most of the submissions contained therein are

already dealt with by us in the earlier part of this

judgment. However, some additional aspects mentioned therein

are required to be considered. In paragraph IV (i) it is

submitted that the term "unfair labour practice" denotes a

habitual practice by the employer, and not isolated events.

For that purpose, emphasis is placed on the dictionary

meaning of the word "practice" which 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.

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Similarly, contention found in paragraph IV(ii) that

the words "discharge or dismissal" mean the final order of

sending away or removing a person also cannot be of any

assistance to the appellant for the simple reason that we

are not concerned with the connotation of the words "dismiss

or discharge". The question is whether an attempt towards

ultimate dismissal or discharge by way of taking a firm step

towards it can be the subject-matter of a complaint under

the Maharashtra Act. For deciding that question the entire

scheme of the Act becomes relevant including its preamble,

as discussed earlier. No conclusion can be based only on the

meaning of the words "discharge or dismissal" as tried to be

suggested. Similarly, contention in sub-paragraph (vii) of

paragraph IV relying on a decision of this Court in Bharat

Iron Works vs. B.B. Patel (1976 (2) SCR 280) is also of no

assistance to the appellant as the said decision refers to

the nature of proof required for proving the allegation of

mala fide or victimisation. That stage would come once the

complaint on the ground of victimisation is taken up for

consideration on merits at final hearing stage or at stage

of interim relief, as the case may be.

The submission made in paragraph V(i) on the

construction of the words "is engaging in" as found in

Section 28 also cannot be countenanced for the simple reason

that even in the said paragraph, it is mentioned that some

of the unfair labour practices may be of continuing nature

and for that purpose emphasis is placed on some of the items

mentioned in Schedules II, III and IV. However, even from

the scheme of the schedules it becomes clear that any

present continuous act of engaging in the alleged unfair

labour practice would be covered by the term "is engaging

in". We have already discussed in detail the correct

connotation of these words in the earlier part of this

judgment. For the reasons recorded by us therein, this

submission is found to be devoid of any substance. In sub-

paragraph (iii) of paragraph V, it is submitted that the aim

of prevention is achieved by :

(a) directing the employer as an interim

measure to withdraw the practice

complained of and if the complaint is

proved, in the final order of quashing

the order of dismissal, and also

(b) by prescribing a penalty which

penalty is to act as a deterrent and

prevent the commission of unfair labour

practice.

We 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

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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 actions and to

hold domestic enquiries against their erring employees. But

for doing so, the standing orders governing the field have

to be followed by such employers. These standing orders give

sufficient protection to the concerned employees against

whom such departmental enquiries are proceeded with. If such

departmental proceedings initiated by serving of

chargesheets are brought in challenge at different stages of

such proceedings by the concerned employees invoking the

relevant clauses of Item 1 of Schedule IV before the final

orders of discharge or dismissal are passed, the Labour

Court dealing with such complaint should not lightly

interfere with such pending domestic enquiries against the

concerned complainants. The Labour Court concerned should

meticulously scan the allegations in the complaint and if

necessary, get the necessary investigation made in the light

of such complaint and only when a very strong prime facie

case is made out by the complainant appropriate interim

orders intercepting such domestic enquiries in exercise of

powers under Section 30(2) can be passed by the Labour

Courts. Such orders should not be passed for mere askance by

the Labour Courts. Otherwise, the very purpose of holding

domestic enquiries as per the standing orders would get

frustrated.

In the result, this appeal fails and is dismissed with

costs.