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Judgment
Rajendra Menon, J.
By the present petition, Society has called in question Ann.P/1 dated 29.05.1999, a interim award passed by the Labour Court in a pending reference case.
The appropriate Government in exercise of its power u/s 10 of The Industrial Disputes Act 1947, referred certain dispute with regard to the justification or otherwise in terminating the services of the five lady workers. The reference order further contains an item with regard to grant of interim relief to these ladies. Apart from the aforesaid various other demands of the Union were also referred for adjudication. As there was a reference with regard to grant of interim relief the Labour Court by the aforesaid order has directed for a payment equivalent to 50% of the last drawn wages from the date of reference for a period of 90 days and there after at the rate of 75% till passing of the final award. This Court had admitted the petition in the year 1999 and operation of the award in question was stayed vide order dated 15.09.00 as a result of which the relief granted by the aforesaid interim award has not been extended to employees concerned.
Shri R.D. Jain, learned Sr. Counsel appearing for the Petitioner employer raised the following contention:
i. The labour Court in the present case has exercised power u/s 15(2)(b) of the Industrial Disputes Act which is not permissible as the said section is a state amendment applicable in the state of West Bengal only.
ii. That the Labour Court has no power to grant interim relief or pass an interim award.
iii. Even if it is held that the Labour Court had the power to grant interim relief the same has to be granted only after considering the principles for grant of such relief, namely existence of prima facie case, balance of convenience and irreparable loss. In the present case the orders have been passed without considering the same hence the same is unsustainable.
Refuting the aforesaid submission Learned Sr. Counsel Shri H.N. Upadhyay, appearing for the Respondent employee''s submitted that the labour Court has got full powers to grant interim relief. Section 2(b) defines a award, to mean an interim award also. It is also submitted by him, that in view of the judgment of Supreme Court in the case of Godrej and Co. Vs. Commissioner of Income Tax, Bombay City, and subsequent judgment''s on this point there cannot be any dispute that the Labour Court does not have power to pass interim award.
Further submission is that on the basis of affidavit''s and documents filed by the Respondent Union, Labour Court has come to the conclusion that the termination amounts to retrenchment and the same being in violation of Section 25(f) of the Industrial Disputes Act is patently illegal. It is submitted by him that reference to Section 15(2)(b) in the award seems to be a typing mistake and therefore it has to be ignored. It is his case that as the Labour Court has full powers to pass an interim award no case for interference is made out.
I have heard learned Counsel for the parties.
Section 15 of the Industrial Disputes Act, 1947 provides for the duties of the Labour Court, tribunals and national tribunals. The said section does not refer to any interim award or interim relief being granted in exercise of that power. There is no provision like Section 15(2)(b) in the Principal Act. There is no amendment also in the State of Madhya Pradesh for granting interim relief or passing interim award under this Section. However there is a state amendment which is applicable only in the State of West Bengal and Section 15(2)(b) of the State amendment permits the Labour Court to grant relief of wages as an interim measure to a discharged or retrenched workman, in case the dispute is not finally determined within a period of 60 days from the date of reference. The rate of granting relief is, amount equivalent to subsistence allowance admissible under the West Bengal payment of Subsistence Allowance Act, 1969.
In the instant case it is clear on a perusal of para 5, the operative part of the interim award that the Labour Court in the instant case has granted relief by exercising the powers vested u/s 15(2). The relief granted is also payment of wages equivalent to subsistence allowance. In the State of Madhya Pradesh the provisions of aforesaid section are not applicable and therefore the Labour Court committed grave error in exercising the powers under the said provision which is not applicable in the present case. To that extent the submission of learned Sr. Counsel Shri R.D. Jain has to be accepted and it has to be held that the Labour Court had no jurisdiction to grant any relief by way of an interim award u/s 15(2)(b).
Even if the Labour Court had no power to grant the relief prayed for as an interim measure by exercising powers u/s 15(2)(b) the question is whether an interim award could be passed even without the aid of the aforesaid provisions. A perusal of the order of reference indicates that the appropriate Government had specifically referred the question with regard to grant of interim relief in the present case. That apart a perusal of the definition of award as contained in Section 2(b) of the Industrial Disputes Act, 1947 makes it clear that an award also includes an interim or final determination of an industrial dispute. Thus considered in the light of the law laid down by the Supreme Court in the case of Hotel Imperial (supra) it is clear that in an adjudication under the industrial dispute act pending before it the Labour Court or the Tribunal have got powers to grant interim relief. It has been held in the aforesaid case that the labour court has the power to make an interim award on a point of dispute referred to it for adjudication or on a matter incidentally to the main question referred for adjudication. In view of the above it has to be held that a Labour Court or a tribunal is possessed of the power to pass an interim award in a pending dispute referred to it for adjudication. Arguments of learned Sr. Counsel for the Petitioner in this regard is therefore unsustainable.
The question that requires determination is as to whether in the facts and circumstances of the present case the Labour Court was justified in passing an interim award granting relief to five lady workers. It is the case of the lady workers that services were terminated during the pendency of the conciliation proceedings and therefore the same is in violation of Section 33. That apart the termination amounted to retrenchment and therefore the provisions of Section 25(f) had to be complied with and the termination which in violation of the aforesaid provisions is illegal. The aforesaid submission was made and separate application praying for interim award was filed vide Ann.P/3 the affidavit of the five lady workers was also filed. In reply to the aforesaid application the employer had submitted a separate reply supported by an affidavit denying the averments to the effect that the termination is contrary to the provisions of Section 33. It has been further averred that the employees were appointed for a particular period on daily wages and after need of work was over there services were terminated. It has been held that the termination is not retrenchment there is no violation of Section 25(h) or Section 25(f) of the Industrial Disputes Act. It has been contented that the interim relief if granted will amount to adjudicating the main question with regard to the fact as to whether the termination amounts to retrenchment or not and therefore it can be decided only after recording evidence in the matter. Apart from the aforesaid objection it has been stated specifically in para 4 of the reply Ann.P/5 that balance of convenience and irreparable loss are not in favour of the employees and as the termination is not retrenchment prima-facie case is also not in existence. In view of this it is submitted that the prayer for interim relief should be rejected. In support there of an affidavit of one Shri Shahid Saxena has been filed.
The Labour Court on the basis of the affidavit on record has given a finding that the employees have worked for 240 days in a calendar year they, have been removed from services and there is non compliance of Section 25(f) and therefore prima-facie it is established that the termination amounts to illegal retrenchment. After recording the aforesaid finding the Labour Court has proceeded to grant the relief by exercising powers u/s 15(2)(b).
As argued by learned Sr. Counsel Shri H.N. Upadhyay even without exercising power u/s 15(2)(b) labour court could grant the relief in view of the settled principle that an interim relief can be granted by the labour Court. There is no dispute in accepting the aforesaid proposition. But ingoing so the Labour Court has to see that the prima-facie case, balance of convenience and irreparable loss arc existing in favour of the employees and only if all the three exist together can interim relief be granted. A Division Bench of this Court in, Madhya Pradesh State Road Transport Corporation v. Virendra Singh Yadav and Ors. 1989 MPJR 937 1990 J.L.J.66 while considering the power of Labour Court to grant interim order in the nature of injunction while exercising powers u/s 107 of the Madhya Pradesh Industrial Relation Act, 1960 had held that while exercising the aforesaid power the Labour Court must find that the three pillars namely prima-facie case, irreparable injury and balance of convenience are existing. In para 7 of the said judgment it has been held as under:
Coming to the contentions urged on merits, the application for interim relief was filed u/s 107 of the Act, which reads as under:
Powers of Board, Industrial Court, etc., to pass interim orders. In any proceedings before it under this Act, a Board, the Industrial Court or a Labour Court may pass such interim orders including a prohibitory order or a stay order as it may consider just and proper.
The object of the interlocutory injunction is to protect a party against an injury or violation of his legal right. It cannot be disputed that a Labour Court while exercising powers u/s 107 of the Act, much find three pillars, i.e. prima-facie case, irreparable injury and balance of convenience. Therefore, a Labour Court must not only find that there is a prima facie case in the favour of the Petitioner, but must take in to the account irreparable injury that of the three ingredients is missing, the Labour Court will stay its hands in passing the order. For a prima facie case, the Court must not only be satisfied that the claim is not superfluous or vexatious but has to see that there is a serious question to be tried. After finding that there is a prima facie case, the Court has to consider whether the party seeking extraordinary relief of injunctions could be compensated in terms of money. So far as the doctrine of relative or comparative injury is concerned it rests upon particular or peculiar circumstances of each case. Thirdly, the Court has to consider whether balance of convenience lies in favour of a party in granting the injunction or in favour of the opposite party by its refusal The extraordinary nature of the remedy by injunction calls for careful application of this guiding principle and it can safely be said that rarely injunctive relief will be granted, when it operates inequitably or to control the real justice of the case, in case of employer and employee whether it affects disciplines. Besides, there are host of consideration, and one of them is that while granting interim relief, the whole relief is not granted without enquiry or trial of the case."
The aforesaid principle has been followed in other cases also in a series of judgment by this Court and the same view has been taken in identical matters by other High Courts also. It has been held that in granting interim relief the Tribunal must determine that there is a good prima-facie case in favour of the employees for final adjudication and therefore on the facts interim award is necessary. In exercising the discretion for granting interim relief in a pending reference the Tribunal has to consider the existence of prima-facie case, balance of convenience and irreparable loss and necessity of interference to protect the parties from further injury the aforesaid view has been laid down by a Division Bench of the Rajasthan High Court in the case of National Textile Corporation v. State of Rajasthan 1989 (1) LLN 778 and the Madras High Court in the case of E.I.D. Parry (India) Ltd. v. Industrial Tribunal, Madras 1993 (2) LLJ 1.
From the aforesaid it is clear that while grant or awarding interim relief it is not sufficient for the Labour Court to say that the employees are undergoing hardship and therefore interim relief is being granted. It is incumbent upon the tribunal to discuss the relevant facts of the case and find out in what way the stand of the employer is unjustified and after considering the relevant facts of the case taking note of the stand of the employer justification of the employer''s action has to be determined thereafter the existence of prima-facie case, balance of convenience and irreparable loss have to be assessed. A perusal of the award in the present case indicates that the said principle of assessment before granting interim relief has not bee considered by the Labour Court. By merely holding that the employees have worked for 240 days and there is non-compliance of Section 25(f) the Labour Court has held that the termination is retrenchment however it has not taken in to consideration the averments of the Petitioner employer that the employees were daily wages employees and they Were appointed as per need of work. Infact determination of this question could be done only after recording evidence in view of the nature of dispute that was existing between the parties. Facts stated in the affidavit by one party and refuted by the other party by filing counter affidavit has to be resolved by recording evidence and therefore assessment of prima-facie case in the present case is not in accordance with law. Even if it is assumed for a moment that prima-facie case existed in favour of the workmen the question further remains at to whether that alone could be the consideration for granting interim relief in the facts and circumstances of the present case. In view of the well settled principle of law in this regard that Labour Court was duty bound to record a further finding that if interim relief is not granted irreparable loss would be caused to the workmen concerned and balance of convenience in the facts and circumstances of the present case is also in their favour. The records indicate that there has been no assessment of the aforesaid principle. On the contrary the Labour Court has not at all considered the facts of irreparable loss and balance of convenience before granting interim relief which in view of the law laid down by the Division Bench in the case of M.P.S.R.T.C. (supra) is clearly erroneous and unsustainable in law. The Labour Court in passing the interim award has not taken note of the fact that the finding to the effect that the termination amounts to retrenchment is infact determination of the final dispute itself which has been referred for adjudication. This could be done only after affording the Petitioner employer opportunity of adducing evidence and proving that the termination was not retrenchment.
Having considered the totality of the facts and circumstances of the case and in the light of the discussions and observations made hereinabove it cannot be disputed that the impugned interim award passed by the Labour Court was totally erroneous and inconsistent to the well settled principles of law with regard to grant of interim relief. That apart even though the interim award was passed on 29.05.1999 the records indicate that the same has not been enforced. It was stayed by this Court on 15.09.1999 and the case never listed for hearing thereafter for more than three years. It was only listed on 19.05.2002 and the benefit of the interim award was never extended to the employees for all these years. The interim order remained on paper without being enforced and therefore the very purpose of granting the same has been rendered ineffective in the facts and circumstances of the present case. Even though there is no stay of proceedings by this Court, during the course of hearing it has been indicated that the reference is still pending and final award has not been passed.
Taking in to consideration the entire circumstances the legal principle with regard to grant of interim relief and the provisions of law in this regard I am of the view that award in question cannot be sustained and the same is hereby quashed.
However as the dispute is pending since 1999 and the Labour Court has not determined the same finally, it is ordered that the Labour Court shall finally adjudicate the dispute and pass an award in accordance with law within a period of three months from the date of filing of certified copy of this order before the Labour Court.
The petition is accordingly allowed. The impugned award Ann.P/ 1 dated 29.05.1999 is quashed and the Labour Court, as directed hereinabove, shall proceed with the matter.
Parties to bear their own costs.