JUDGMENT
1. This appeal takes exception to an interlocutor injunction restraining the appellant vis-a-vis recourse to various agitational practices indulged in by its various office-bearers and members as against the respondent.
2. The respondent hereinafter to be referred to as the ‘plaintiff’ was running a steel rolling mill at L.B.S. Marg, Vikhroli, Bombay. On January 23, 1984 it had put up a notice announcing the closure of manufacturing activities at its factory resulting in the non-requirement of the services of its workmen. Copies of the notice were sent to various authorities as also the appellant-defendant. The workmen were called upon to collect their dues and the majority had not done so, for which reason, on September 29, 1984 another notice was given by the plaintiff this notice being at page 94 of the appeal compilation. The plaintiff filed a complaint ascribing to defendant the practice of unfair labour practice falling under items 4 and 5 of Schedule III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (PULP Act). This complaint was lodged in the Industrial Court at Bombay and was registered as Complaint (PULP) No. 1384 of 1984. An application was given to the Industrial Court soliciting interim relief. This was to the effect that various activities indulged in by defendant’s office-bearers and members should not be repeated. The application for interim relief was opposed by the defendant on various grounds – one of them being that having regard to the closure of the industry neither the PULP Act nor the Industrial Disputes Act, 1947 (ID Act) were attracted. The matter, it was said, fell clearly outside the jurisdiction of the Tribunal under the two enactments aforementioned. This contention was negatived by a learned Member of the Industrial Court who confirmed the ad interim injunction on December 14, 1984. The observations made by the learned Member included the following :
“I am, however, of the view that the submission that this court has no jurisdiction and that the remedy of the complainant lies only in the Civil Court cannot be accepted.”
Aggrieved by the confirmation of the ad interum injunction the defendant came to this Court by way of Writ Petition No. 167 of 1985. The said petition was admitted and the operation of the interim relief granted by the Industrial Court, stayed. The plaintiff, however, was in hurry and therefore took out a motion bearing No. 1650 of 1985 seeking permission of the Writ Court to withdraw the complaint moved by it etc. etc. On October 4, 1985 a Judge of this Court passed the following order on the motion :
“It will be open to the 1st respondent (plaintiff) to apply to the Industrial Court for withdrawal of Complaint No. 1384 of 1984 after notice to other side. It is clarified that interim order in the present petition does not in any way preclude the respondent No. 1 from making such application for withdrawal before the Industrial Court.”
Armed with permission, plaintiff moved the Industrial Court which Court on November 7, 1985 allowed withdrawal and discharged the interim restraint.
After the withdrawal of the complaint from the Industrial Court, plaintiff filed S.C. Suit No. 7339 of 1985 in the City Civil Court at Bombay. The plaint gave a narration of the events leading to the institution of the suit and amongst the reliefs claimed are injunctions to restrain the defendant’s office-bearers, members and agents etc, from preventing, obstructing or hindering plaintiff and its agents from removing its machinery, finished goods etc. etc. at its factory at L.B.S. Marg, Vikhroli. Alongside the institution of the suit was moved a motion seeking interlocutory reliefs. These included (i) obstructing preventing or hindering in whatsoever manner the plaintiff and its agents from taking out from its factory machinery, allied parts, tools and other spare parts and (iv) obstructing, preventing or in any way hindering the plaintiff from using its office to sell the finished goods and raw materials. The defendant now took the stand that the Civil Court had no jurisdiction to entertain the suit. It contended that the matter fell squarely within Sections 59 and 60 of the PULP Act. This being the position the jurisdiction of the Civil Court was excluded and the motion soliciting interlocutory relief warranted rejection. The learned trial Judge after hearing parties negatived the contentions raised by the defendant and made the motion absolute vis-a-vis the prayers enumerated above. It is that order which is assailed in appeal.
3. Before coming to the submissions raised in appeal I might as well mention here that the defendant has moved an application to the authority constituted under the Payment of Wages Act. The application is to the effect that the employees of the plaintiff number as many as 136, that these employees had not been paid, and that a direction be given to the plaintiff to pay their wages for the period prior and subsequent to April 21, 1984. In that application which is still pending interim relief in the shape of a conditional attachment of plaintiff’s assets was sought. The authority constituted under the Payment of Wages Act on March 10, 1986 rejected the application for attachment, holding that prima facie a closure had been effected and that this disentitled the workmen from claiming wages. It was held that the number of workmen employed by the plaintiff was not 136 but only 70-75.
4. The stand taken by the parties in the appeal before me is a reiteration of what they had to say before the trial Court. Mr. Ganguli for the appellant contends that the closure is a disguise for an illegal lockout or illegal termination of the employment of workers exceeding 100. Admittedly plaintiff had not obtained the permission of the appropriate Government as required by Section 25(O) of the ID Act. What defendant had to say on the subject was not a mere refutation of stand taken by the plaintiff but some based upon details such as the names of workmen, the wages payable into them, the period for which they had not been paid and the exact amount to which each of them was entitled. In the face of this data one could not go by the plaint everment about the number of workmen being less than 100. It is not possible to agree with this submission. At the stage at which the suit is, a dispute in regard to jurisdiction will have to be decided on the basis of averments appearing in the plaint. An investigation into the facts may reveal a different position and the solution then will not be to direct a return of the plaint for presentation to the proper Court, but a dismissal of the suit. The legal position vis-a-vis industries which have closed down is no longer open to question. In M/s. Indian Hume Pipe Co. Ltd. v. Their Workmen (1969-I-LLJ-242), the case law was reviewed and it was held (p. 246) :
“In view of these decisions, our conclusion is that once the Tribunal finds that an employer has closed his factory as a matter of fact it is not concerned to go into the question as to the motive which guided him and to come to a conclusion that because of the previous history between the employer and the employees the closure was not justified. Such a closure cannot give rise to an industrial dispute.”
5. Mr. Ganguli relies upon the passage quoted in this very decision from an earlier decision of the Supreme Court to wit Express Newspapers (P.) Ltd. The Workmen (1962-II-LLJ-227). The question that arose in that case was whether there was a closure or a lockout and the Court had this to say (p. 246) :
“If the action taken by the appellant is not a lockout but is a closure, bona fide and genuine, the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand if, in fact and in substance, it is a lockout, but the said action has adopted the disguise of a closure, and a dispute is raised in respect of such an action, it would be an industrial dispute which industrial adjudication is competent to deal with.”
At the most this would entitle the defendant to lead evidence to establish that the closure is a disguise for an illegal lock-out or something akin thereto. At the interlocutory stage reliance will have to be placed on the plaint and therefrom it would appear that the case is one of closure for which reason the matter is beyond the purview of industrial adjudication. To this affect are the observations appearing in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union (1957-I-LLJ-235 at 239) :
“It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, and then proceeds on to provide for various steps being taken, when dispute arises in that industry. Thus, the provisions of the Act relating to lockout, strike, lay-off, retrenchment, conciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and not one which is closed.
In Burn & Co. Ltd. Calcutta v. Their Workmen Civil Appeal No. 325 of 1955, this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might not be adversely affected and the larger interests of the public might not suffer. Both these objects again can have fulfilment only in an existing and not a dead industry. The view therefore, expressed in Indian Metal and Metalurgical Corporation v. Industrial Tribunal Madras (1952-I-LLJ-364) and K. M. Padmanabha Ayyar v. State of Madras (1954-I-LLJ-469) that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly correct. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. M. Padmanabha Ayyar v. State of Madras (supra), fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so, if a dispute arises – if one such can be conceived-after the closure of the business between the quondam employer and employees.”
6. Mr. Ganguli then argues that the illegal activities attributed to his clients fall under items 5 and 6 of Schedule III of the PULP Act. These items read together with Section 60 of the said Act take the matter beyond the jurisdiction of the Civil Court. In support of this submission learned counsel relies upon the judgment of Dharmadhikari, J. in Nichani Hotels Corporation v. Bombay Labour Union and others 1981 LIC 1235. The ratio of the decision is comprised in the following passage from the said judgment :
“The coercion contemplated by entry 5 must be qua the employer, members of the staff or his business activity. If demonstrations are carried out in such a way and very close to the work premises which result in obstruction and/or coercion, then also it could be termed as unfair labour practice within the meaning of entry 5 to Schedule III. As already observed it is not possible to lay down any hard and fast rule in this behalf and it must depend upon the facts and circumstances of each case. In the present case, if averments made in the plaint are read in the context of surrounding circumstances, as well as the evidence placed on recording form of affidavit and correspondence, then in may opinion the learned Judge of the trial Court was right in coming to the conclusion that the said actions could from the subject matter of a complaint under the Act and therefore the suit was barred under Section 60 of the said Act.”
7. But the position here is slightly different. The plaintiff has come to Court averring that there is a disruption of the employment by virtue of a closure. As stated in Pipraich Sugar Mills Ltd. case (supra), for the industrial adjudicating machinery to have jurisdiction there must be in existence an industry. The industry must be one which is running and not one which is closed. It is plaintiff’s contention that the industry is closed and prima facie that appears to be so. This will not preclude the defendant from trying to establish the alleged fictitious character of the closure or whatever other label it chooses to stigmatize the said action.
8. Mr. Ganguli then argues that there was no justification for the trial Court to assume that defendant’s office – bearers and agents etc, had done any of the things attributed to them. The very fact that defendant has opposed the suit and the grant of interim relief, is an indication of its attitude. Even if it has not done anything to justify the institution of the suit, the attitude adopted by it in the litigation shows a strong inclination to indulge in the very activity which plaintiff wants prohibited. Therefore the argument that no case had arisen to justify the solicitation and grant of interim relief cannot be accepted.
9. The last question to which I turn is the contention of Mr. Cama that it was not open to the defendant to question the jurisdiction of a Civil Court when that jurisdiction was said to oust the maintainability of the complaint lodged before the Industrial Court. An ordinary principle of civil law is that a party cannot both approbate and reprobate. But this is not a mere question of approbation and reprobation, for as Mr. Ganguli rightly points out, parties cannot by tactics or by consent decide which forum has the jurisdiction to determine a particular dispute. That would depend upon considerations other than the strategy adopted by the parties. Here it is true that the defendant in the Industrial Court took exactly the reverse stand. But in litigation, like in war, everything seems to be fair. Mr. Cama contended that defendant was estopped from questioning the jurisdiction of the Civil Court because it was the exception taken by it in the Industrial Court which had compelled plaintiff to take recourse to civil litigation. This posture of innocence is difficult to believe. It is well known that employers and industries would like to take recourse only to civil litigation for there lie interminable delays and interminable methods therein to stall the workers from getting their rights. The correct way to describe the attitude of the parties is that plaintiff by description was driven to the Industrial Court where defendant wanted to checkmate it. A later and more detached reflection led plaintiff to the view that the forum pointed out by the defendant was ideal for keeping the workers tied up interminably. That is why the plaintiff chose to get the complaint withdrawn and move the Civil Court. It was not therefore acceptance of defendant’s contention which led plaintiff to the Civil Court. There is therefore no question of estopped and in any case, there can be no estopped against statutory provisions relating jurisdiction.
10. The result of the foregoing discussion is that the order passed by the learned Judge of the City Civil Court is correct and is hereby confirmed. The appeal fails and is dismissed, with costs in this Court, left to be costs in the cause.