JUDGMENT
G.D. Patil, J.
1. By the instant petition, the petitioner has challenged the order dated 14-2-1994, passed by the Industrial Court, Nagpur, on the application filed under section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the MRTU & PULP Act) by the respondent no. 2 praying for an interim relief during pendency of his complaint under section 28 of the MRTU & PULP Act, seeking regularisation of his services on the post of Instructor in the faculty of fitter under respondent no. 3, the divisional social welfare officer. By this interim order dated 14th February, 1994, the Industrial Court had directed respondents Nos. 1 and 2 to the complaint, that is present respondent no. 3 the Divisional Social Welfare Officer and the Principal of the Government Industrial Training Institute, Wardha, for the physically handicapped persons not to terminate the services of the complainant during the pendency of his main complaint.
2. It is an undisputed fact that respondent no. 3 the Divisional Social Welfare Officer, runs the Government Industrial Training Institute at Wardha for the physically handicapped students and there are some posts of Instructor in composing, binding and fitting sections. It is claimed by respondent no. 3 that in the year 1989, there arose a need of filling in the posts of Instructor in fitting section. As per respondent no. 3, the post was reserved for scheduled casts and the same had to be filled in only through the recommendations from the Regional Service Selection Board, which is a lengthy process and takes some time for recruitment and further since the requirement was somewhat urgent the respondent no. 3 filled in that post by appointing present respondent no. 2 Shri M. D. Jamunkar who belongs to ‘OBC’ category and not to the ‘SC’ category as a stop gap arrangement temporarily and further on the condition that his service was liable to be terminated without prior intimation and notice on the selection and recommendation if made of the suitable candidates by the Regional Service Selection Board. The order of the appointment also specifically stated that the appointment was made for a period of six months only. The respondent no. 2’s first appointment order on these terms is dated 6-12-1989. The respondent no. 2 subsequently was again appointed on similar terms by the orders dated 1-6-1990, 5-8-1991, 8-8-1991, 1-11-1991, 6-1-1992, 19-5-1992, 17-2-1993, 14-5-1993, 18-10-1993 and 9-11-1993. The last order of appointment on these terms was dated 22-11-1994. The respondent no. 2 was appointed for a period of one month or till the selection was made by the Regional Selection Board, whichever, was the earlier. In the meanwhile respondent no. 3 undisputedly had sent a proposal to respondent No. 4 the Regional Selection Board to select a suitable candidate from the SC category to fill up the post of Instructor in ‘Fitting Section’. The Regional Selection Board issued an advertisement accordingly on 24-4-1993. Since the post was shown as reserved for ‘SC’ candidates, probably the respondent no. 2 did not apply. Several other persons had also applied including the present petitioner. The petitioner was selected by the Regional Selection Board on 27-8-1993. Since the Respondent No. 2 was not in a position to get the employment because the post was reserved and further since according to him he had completed more than 240 days of service continuously and without any break, he was entitled to be made permanent on the post of ‘Instructor in Fitting Section’, he filed a complaint ULP No. 1268/1993 under the MRTU & PULP Act before the Industrial Court. He claimed therein that he be made permanent on the post of Instructor in the faculty of Fitter and be given benefits of permanent employee, having completed 240 days of service. It is in this complaint which is dated 27th September, 1993, respondent no. 2 in January, 1994, filed an application under section 30(2) of the MRTU & PULP Act, alleging therein that the petitioner has been selected by respondent no. 1 the Divisional Social Welfare Officer present respondent no. 3 through the Regional Service Selection Board for appointment to the said post of ‘Instructor in Fitting Section’ and though respondent no. 2 Madan Jamunkar was then working on the said post since his initial appointment in the month of December, 1989, instead of regularising the services of respondent no. 2 respondent no. 3 is likely to give appointment to present petitioner and as such direction should be issued to respondent no. 3 and the Principal of the Institute instructing them not to appoint fresh candidate in place of respondent no. 2 and not to terminate his services to allow him to work as Instructor in Fitting Section pending in the main complaint.
3. It is on this application as aforesaid the Industrial Court has passed the order on 14-2-1994 directing respondent no. 3 and the Principal of the Institute not to terminate the services of respondent no. 2 the complainant during the pendency of the main petition.
4. The aforesaid interim order of the Industrial Court dated 14th February, 1994 has been challenged in the instant writ petition. Earlier this petition was heard by my learned ‘Brother Shri Wahane B. U. ‘J. which came to be allowed by the judgment dated 27-4-1994. By this Judgment it was directed that the petitioner be appointed as the ‘Instructor’ and the order to that effect be issued forthwith. Having taken into consideration that respondent no. 2 Jamunkar was working as ‘the Instructor’ since 1989, it was observed that if permissible under the rules he be continued either as the ‘Instructor’ if the post is vacant or in any other post to which he is eligible. Respondent no. 2 challenged this Judgement of this Court dated 27-4-1994 in Letters Patent Appeal No. 101 of 1994. The Letters Patent Appeal came to be decided by the Division Bench of this Court on 11th November, 1994. The same was allowed setting aside the order of the learned single Judge dated 27-4-1994 only on the ground that the appellant present respondent no. 2 was not heard before delivery of the Judgment dated 27-4-1994 by the learned single Judge. Resultantly, the writ petition was restored for final hearing. It is in these circumstances it has now come up for hearing before this Bench.
5. Heard Shri Bagale learned counsel for the petitioner, Shri Chowda learned Assistant Government Pleader for respondents nos. 1, 3 and 4 and Shri Choudhari learned counsel for respondent no. 2. Several contentions have been raised by the counsel for the respective parties. It is, however, not necessary to go through all the questions raised by the learned counsel. One such question raised by the learned counsel for the petitioner Shri Bagale and also by Shri Chowda learned Assistant Government Pleader relates to very jurisdiction of the Industrial Court in entertaining the application under section 30(2) of the MRTU & PULP Act, dealing with and granting relief in relation to the termination of the services of the complainant. In their submissions there was no actual termination effected as per the complainant till filing of the application under section 30(2) of the MRTU & PULP Act and the relief sought by the applicant under section 30(2) of the MRTU & PULP Act was apparently on the basis of the apprehension of the termination which in turn was based on selection of the petitioner for the post of the fitter and likelihood of issuance of his order of appointment. The termination or apprehended termination whatever it may be in the submission of the learned counsel is a matter governed by provisions of Section 7 of the said Act. The complaints relating to unfair labour practices described in Item I of Schedule IV have to be decided by the Labour Court and not by the Industrial Court. In the submissions of the learned counsel for the petitioner and the learned Assistant Government Pleader, the impugned order since dealt with the termination and restrained concerned authority from terminating the services of the complainant during the pendency of the main complaint, the impugned order has to be held as without jurisdiction and on this short point alone it has to be quashed and set aside. Reliance is placed in this behalf on the two decisions of this Court, one is rendered by the Division Bench reported in Ashok Vishnu Khate and Ors. v. M. R. Bhope, Judge, Labour Court 1992 I CLR 531 and the another one is of single Judge of this Court in Writ Petition No. 1314 of 1980 decided on 24th September, 1980 by Deshpande J.
6. In reply Shri Choudhari learned counsel for respondent no. 2 contended that the basic complaint filed by respondent no. 2 was for seeking for regularisation in employment. While claiming such relief which undisputedly was within the jurisdiction of the Industrial Court, if some ancillary relief is to be claimed it could be claimed before the Industrial Court itself where the main complaint was pending for disposal and the Industrial Court certainly has got a power to deal with and decide such claim for ancillary relief, though, strictly, it may not come within it’s jurisdiction. In the submissions of Shri. Choudhari, having regard to provisions of Section 30(2) of the MRTU & PULP Act, the Industrial Court has jurisdiction to pass such orders as it deems just and proper, pending final decision. The Industrial Court exercising jurisdiction under this provision of Section 30(2) of the MRTU & PULP Act, since in it’s discretion has issued the order under challenge, which again is mere interim nature, this Court should not interfere with the same, more so, as the provisions incorporated under section 30(2) of the MRTU & PULP Act indicates that the Industrial Court has got jurisdiction to pass the order of the nature which has been passed by it in the instant matter. Undisputedly when the complaint under section 28 of the MRTU & PULP Act was filed before the Industrial Court by respondent no. 2, the complainant was in service of respondent no. 3. As aforesaid his complaint was regarding apprehended termination and, therefore, a relief of direction not to terminate the services was also sought and by filing an application under section 30(2) of the MRTU & PULP Act an interim relief in this behalf was also asked. This is, therefore, a case of the apprehended termination. The question as to whether such type of termination falls in Item I of Schedule IV of the MRTU & PULP Act, in fact is no more res-integra. The Division Bench of this Court in the decision reported in Ashok Vishnu Kate v. M. R. Bhope, Judge, Labour Court (cited supra) has held that :
“The expression “engaged in or engaging in any unfair labour practice” in S. 28(1) is of wide ambit and would cover cases where an employer is engaging in practice which will lead to dismissal. The Legislature very wisely did not use the expression “where any person has committed unfair labour practice”. Once the employer engages in unfair labour practice, then the employee can approach the Labour Court and it is not that the cause of action for complaint under Item 1 of Schedule IV accrues only when the unfair labour practice of the employer ends with the order of discharge or dismissal. The expression used in Item 1 is “to discharge or dismiss employees” and the word “to” gives a clear indication that in case the employer indulges in unfair labour practice which leads to discharge or dismissal, then the employee can approach the Labour Court for redressal even before the order of discharge or dismissal is passed. The use of infinitive “to” shows that that the action of dismissal or discharge is not yet complete. The construction on Item No. 1 should be harmonious to achieve the object of the legislation. Any construction which ousts the jurisdiction of the Labour Court to entertain the complaint of unfair labour practice should be avoided. In no civilised set up, and more so, in industrial disputes the employee can be told that you must suffer at the hands of the employer and the remedy is available only when the wrong is completed.”
The Divisional Bench has further held that :
“The unfair labour practice contemplated by Item I are not mere discharge or dismissal but discharge or dismissal by adopting the practices which are set out in the item. Therefore, the unfair labour practices precede the actual order of discharge or dismissal of the employee. The order of discharge or dismissal is merely the culmination of the unfair labour practice indulged in by the employer. The provisions of the Act were enacted not only merely to provide for remedy or to penalise the employer for indulging in unfair labour practices but also to provide machinery for prevention of unfair labour practices. If unfair labour practice comes into existence only when an employee is discharged or dismissed, it would lead to very unusual results. An employer may openly indulge in unfair labour practice by resorting to methods which are set out in Item 1 (a) to (f) and in spite of this unfair practice the employee will have no remedy unless and until the employee is discharged or dismissed. An employee on discharge or dismissal would lose the employment and the source of livelihood and may subsequently get relief after passage of several years. The employee is, therefore, certainly entitled to approach the Labour Court and the Labour Court has jurisdiction to entertain the complaint when the employee alleges that the employer is indulging in unfair labour practice set out in Item 1 with a view to discharge or dismiss the employee”.
7. Once it is found that the apprehended termination of an employee is covered by Item I of Schedule IV, Section 7 of the MRTU & PULP Act comes into play and the matter has to be taken to the Labour Court for redressal of the employees grievances. In another matter the learned single Judge of this Court in Writ Petition No. 1314 of 1980 MESB v. Indershah Shamrao Atram decided on 24th September, 1980 was dealing with the complaint in relation to Item No. 5 of Schedule IV of the MRTU & PULP Act, wherein a relief to make them permanent was claimed. During the pendency of this complaint the services of the concerned employees were terminated. Immediately, thereafter, the complainants had moved the Industrial Court under section 30(2) of the MRTU & PULP Act for the interim relief. By the application under section 30(2) of the MRTU & PULP Act a direction was sought for temporarily withdrawing order of the termination pending their complaint before the Industrial Court. It is in this background this Court dealt with the jurisdiction of the Industrial Court in the matter of grant of relief under section 30(2) of the MRTU & PULP Act. As regards the termination this Court held that :
“The interim relief to be granted under section 30(2) of the Act relates to the interim relief including directions to the person to withdraw temporarily the practice complained of pending final decision. Now, in the complaint before the Industrial Court, unfair practice complained of was the continuance of the employees on temporary basis with the object of depriving them of status and privileges of the permanent employees. So within the scope of this complaint, relief which is now claimed i.e. direction to the Board to temporarily withdraw order of termination of service does not fall. For that purpose separate complaint ought to have been filed in the Labour Court. If the jurisdiction were with the Industrial Court itself, perhaps I would not have interfered with the order of the Industrial Court only on account of technical reasons of not filing separate applications, but when the dispute falls within the ambit of Item 1 of Schedule IV of the Act, the jurisdiction to try that dispute changes from the Industrial Court to Labour Court and the Industrial Court has no jurisdiction to grant the relief of directing the Board to withdraw the orders of termination of service. If the Industrial Court had no jurisdiction to direct the Board to withdraw the order of termination of service permanently the Industrial Court had no jurisdiction even to grant interim relief.”
7. There is no dispute that the jurisdiction to try the dispute as regards the termination is with the Labour Court, having regard to the provisions of Section 7 of the MRTU & PULP Act. This Court has already held and I concur with the same that if the Industrial Court has no jurisdiction to give any direction in the matter of termination, it cannot have any jurisdiction even to grant interim relief in relation to that. The instant one is a case where a direction in the matter of termination was sought in the complaint and an interim relief was also sought in relation to that. Since, it is for the Labour Court to entertain the complaint in relation to the termination, the Industrial Court could not have passed any order even at the time of final disposal of the complaint as regards the termination. Resultantly, it could not have granted any relief by way of the interim order under section 30(2) of the MRTU & PULP Act, in relation to the termination of the complainant’s services. The impugned order passed by the Industrial Court in the instant matter, therefore, has to be held as being without jurisdiction and, therefore, it is liable to be quashed and set aside.
8. Shri Choudhari learned counsel for respondent no. 2 in the view I have taken as above submitted that though the petitioner after decision in the instant petition rendered earlier by my learned Brother Wahane J., on 27-4-1994 was appointed as Instructor in May, 1994 after the decision in the Letters Patent Appeal No. 101/94, his services came to be terminated from 3rd January, 1995 and respondent no. 2 has been again appointed with effect from the date he was terminated by the order dated 22-11-1994 by respondent no. 3 and as such it is the respondent no. 2 who is presently working as ‘Instructor’ in the faculty of ‘Fitter’. Shri Choudhari then submitted that in the view taken by this Court respondent no. 2 intends to file complaint before the Labour Court as regards the termination aspect, which will take at least a period of one month and as such, part of this Court’s order in so far as respondent no. 2 is concerned should be kept suspended for a period of one month from today or in case the Labour Court passes any suitable order earlier to that till that period. The request as made in the facts and circumstances of the case cannot be said to be totally unjustified.
9. Shri Bagale learned counsel for the petitioner, however, contended that though he was appointed as aforesaid, after the decision dated 27-4-1994 in this petition in May 1994; he has been terminated by the order dated 22-11-1994 and he is no more in service. Shri Bagale submitted that though selected he was not appointed immediately because of the interim order passed by the Industrial Court which has been found to be without jurisdiction. In fact in the submission of Shri Bagale, the Industrial Court itself in the order under challenge has observed that prima facie the complainant has shown that there were two posts of ‘instructor’ and there was sufficient work available with respondents nos. 1 and 2 and it was, therefore, not necessary to postpone the appointment of the petitioner on the post of ‘Instructor Fitter’ Shri Chawda the learned Assistant Government Pleader, questioned the correctness of these observations by the Industrial Court. Whether there is one post or two posts thus is a disputed question of fact and need not be gone into at this stage. The fact remains that the petitioner has been selected by the Regional Selection Board and the petitioner has become entitled for getting appointment to the post. Even as per the say of respondent no. 3, respondent no. 2 is not entitled to the post. It is in this background, it would be in the fitness of things that despite the pendency of the complaint, the petitioner is required to be given an appointment. In fact, this Court by the order dated 27-4-1994 had already directed respondent no. 3 to issue the appointment order to the petitioner and to allow him to join as ‘Instructor in fitting section’ and it was in compliance with this order the petitioner was given a appointment in May, 1994, though this order now stands set aside in Letters’ Patent Appeal. In the submission of Shri Bagale the decision has been set aside only on the technical ground of not giving hearing to respondent no. 2. Even otherwise, he submitted that since the impugned order has been found to be without jurisdiction, the petitioner is entitled to get continuity on the basis of his appointment as ‘Instructor in Fitting Section’ in the month of May, 1994. However, it would not be proper to go into this aspect of the matter at least at this stage. It is, however, clear that since the order of the Industrial Court states it is also the case of respondent no. 3 that respondent no. 2 is not entitled for permanency and held no legal right to continue in the service, the petitioner is entitled to be appointed immediately on the post of ‘Instructor in Fitting Section’. In so far as the continuity aspect is concerned, it is made clear that the petitioner may make suitable representation in this behalf to respondent no. 3, who it is hoped will consider it at the earliest taking into account the facts and circumstances of the matter.
10. It is in this view of the matter, the instant petition stands allowed. The impugned order passed by the Industrial Court is hereby quashed and set aside. The part of the instant judgment in so far as it sets aside the order of the Industrial Court will remain suspended for a period of one month from today or till passing of the suitable order by the Labour Court whichever is earlier in case respondent no. 2 moves the Labour Court. respondent no. 2 shall move the Labour Court. Respondent no. 2 shall move the Labour Court within two weeks from today failing which the order regarding suspension of the part of the judgment of this Court will stand automatically revoked after a period of two weeks from today. Respondent no. 3 Divisional Social Welfare Officer, Nagpur Division, Nagpur shall forthwith issue order of appointment to the petitioner and allow him to join on the post of ‘Instructor in fitting section’. At this stage Shri Chawda learned Assistant Government pleader submitted that there cannot be any direction in the matter of giving appointment to the petitioner in the instant petition. In the order dated 27-4-1994 passed by this Court in this very petition, though, it is later on set aside in the Letters Patent Appeal on different grounds such direction, in fact, had been issued and that too it appears on the concession given by the learned Government Pleader appearing before the Court. This direction was not even challenged by respondent no. 3 by filing letters patent appeal and was accepted. I am, therefore, not inclined to consider and decide this aspect of the matter in the peculiar facts and circumstances of the case. Rule is made absolute in the above terms. There shall be no order as to costs.